Boxell v Durham County Council Lea [1995] UKEAT 545_94_0712

EAT

Boxell v Durham County Council Lea

[1995] UKEAT 545_94_0712 · 1995-12-07

MR JUSTICE MUMMERY (PRESIDENT) : This is the preliminary hearing of two appeals. Both appeals are by Mr Boxell. The Respondent to both appeals is the Durham County Council LEA. The cases have been listed for a preliminary hearing and although, in form, they have been brought as appeals to this Tribunal they should, in fact, be treated, in substance, as applications to review earlier decisions of this Tribunal, which dismissed Mr Boxell's two appeals on 25 July 1995.

In order to understand the nature of the applications today, it will be necessary to examine the history of these proceedings. Unfortunately, Mr Boxell is unable to attend and, therefore, we have not had any assistance from him in oral submissions explaining the basis of his review applications.

We have studied the papers referenced in this Tribunal under 545/94 and 717/95. The legal position, as we understand it, is as follows. We record the matter in some details, both for the benefit of Mr Boxell and for the benefit of any other Tribunal or Court which has to consider this matter, since Mr Boxell has indicated in recent correspondence that, if we do not find in his favour on these applications, he will wish to have leave to appeal to a higher Court.

The chronology of the matter is this. Mr Boxell, an ongoing supply teacher working from time to time, brought a case in the Industrial Tribunal on 10 May 1993 against the Durham County Council LEA, stating as his complaint "equal pay". In the details of the complaint under Box 10 he said that:

"Durham CC LEA claimed to be able to pay him less than the scale maximum simply because his 21 years of pensionable service were prior to 1987. This would disadvantage women to a greater extent, as men unlikely to take a career break (e.g. for raising a family). Therefore, the LEA could not legally apply this criterion, either to a man or a woman."

That Industrial Tribunal case number was 27208/93 (The Equal Pay proceedings).

It appears from a letter written by the County Council to the Regional Office of the Industrial Tribunals at Newcastle upon Tyne on 16 July 1993 that Mr Boxell had another case against them under the IT reference number 374-15/93 (The Wages Act proceedings). We do not have the IT1 in that case, but we do have the notice of appearance from the Council received on 21 July 1993, in which the Council said this:

"The Applicant [Mr Boxell] was employed by the Respondent [the Council] as a supply teacher on the afternoon of 10th May, 1993.

2. The Respondent maintains that the Applicant has been paid the correct rate for this employment in accordance with the National Agreements relating to Teachers Pay.

3. The Respondent maintains that the issue in this case is the extent of the Respondents contractual entitlement to payment under the National Agreements. The Applicant has commenced legal proceedings in the Darlington County Court (Case No. 9105074) claiming underpayment for work performed. This action is still on-going. The Respondent maintains that the issue in this reference is identical to the County Court action save only that different dates are involved.

4. The Respondent suggests that this reference and reference N27208/93 with which this reference is to be consolidated should be stayed until the County Court action is brought to a conclusion."

That application was made by the Council in the letter of 16 July. It would be sensible to consolidate the cases. Mr Boxell agreed to that. It was explained to the Tribunal, at a hearing for directions on 24 June, that the County Court proceedings had been commenced raising the same issue arising from the Wages Act reference and, therefore, the Council applied for a stay of both sets of proceedings in the Industrial Tribunal, (the Equal Pay proceedings and the Wages Act proceedings), until the Darlington County Court case had been brought to a conclusion. On 4 August 1993 the Regional Office wrote a letter acknowledging the notice of appearance in 374-15 from the Council and stating this:

"A Chairman of the Tribunals has agreed to hold both applications in abeyance pending the outcome of the county court proceedings."

They said that a copy of that letter was sent to Mr Boxell. A copy was also sent along with other correspondence to ACAS for information.

Mr Boxell did not agree that that was a correct decision. He entered into correspondence with the Council. He sent a letter on 10 August and another letter on 16 August, in which he expressed his wish to appeal against the interlocutory decision staying his Industrial Tribunal proceedings until the hearing of the County Court proceedings. It was pointed out to him by the Industrial Tribunal in a letter of 18 August that the Industrial Tribunal had power to regulate its own procedures. That included directing that proceedings may be stayed until after court proceedings relevant to the issues are completed. The stay order had been made in exercise of that power. It was pointed out to Mr Boxell that that might be stayed by the Employment Appeal Tribunal and he was given some advice about that.

The Chairman, for those reasons, saw no reason to change the direction for a stay made on 4 August.

Mr Boxell attempted to appeal. Confusingly, he used an Industrial Tribunal form IT1 for the purposes of stating that he was appealing against the Chairman's interim decision. It appears from that that on 15 September he attempted to appeal the order for stay. He had made submissions to the Newcastle Industrial Tribunal Office, appealing on a point of law against the Chairman who agreed with the Darlington County Council to hold his applications in abeyance. He said that they had failed to initiate an appeal or to say to whom he was to write, other than say that the appeal should be to the London Appeal Tribunal. He said he was, therefore, writing with his appeal on a point of law. It is clear from that document that he was attempting to appeal the decision against stay on the grounds that there was an error of law. He met an initial problem in that his appeal in September against the stay order was out of time. An application was made by Mr Boxell to extend the time. He wrote letters to the Registrar of this Tribunal on 15 December 1993 and 8 January 1994, asking for an extension of time.

After considering submissions from the Respondent Council in further letters of 19 January and 18 February 1994, the Registrar refused to extend time. That order was made on 16 March 1994. There was no appeal against that order to a judge at this Tribunal. This meant that Mr Boxell's appeal against the stay order could not proceed. It was at an end, because it was out of time and time had not been extended.

It is clear from other correspondence that during 1994 Mr Boxell was still attempting to change the decision in relation to a stay. We have, for example, a letter written to him by the Industrial Tribunal at Newcastle on 25 May 1994, acknowledging a letter written earlier that month, saying this:

"The Chairman is not prepared to enter into correspondence with you on the matter. If you wish to have the Chairmans direction set aside you may apply to the Chairman in writing asking for this course of action and giving your reasons in support and they will be considered.

Alternatively you may seek to appeal against it. The Chairman believes you already know how to do this."

The stay remained in force. There was then a hearing before the Darlington County Court. That took place on 19 July 1994. The Court heard evidence and submissions and reserved judgment. The reserved judgment was given on 15 December 1994 and contains the County Court's rulings on the rate at which Mr Boxell was entitled to be remunerated and the scale which should apply.

We pause to mention that this Tribunal cannot entertain an appeal against a decision of the County Court. If there is any dissatisfaction with that ruling, the appeal has to be brought in the Court of Appeal, if any appeal is brought at all.

In the meantime, Mr Boxell tried to bring another appeal to this Tribunal. This appeal was against the refusal of the Industrial Tribunal to list his case for hearing. That appeal was served on 20 May 1994. It was an appeal against the refusal of the Industrial Tribunal on 25 April 1994 to list his case for hearing. That decision was alleged to be made in error of law. That appeal came on for hearing in the Appeal Tribunal on 25 July 1995 under the EAT number 545/94. The Employment Appeal Tribunal dismissed the appeal. Mr Boxell did not attend the hearing and he was not represented. It was an ex parte preliminary hearing and, therefore, there was no attendance by the Council.

On the same date the Employment Appeal Tribunal dismissed another appeal which Mr Boxell had brought in 1995. That appeal is under reference

EAT/717/95

. The appeal in that case was against an order of the Industrial Tribunal on 12 May 1995 requiring Mr Boxell to furnish further particulars of his claim to the Council, who had made the application for the particulars. They were to be furnished on or before 22 May 1995. The order was made under a number of Industrial Tribunal references, including 27208/93 and 37415/93. Three other cases are also mentioned. We have no documents relating to those three cases. The particulars ordered were of Mr Boxell's allegation that he had been disadvantaged compared to the treatment of a woman in the matter of pay. The Council asked, and the Tribunal Chairman ordered, that Mr Boxell should state in what way he had been treated less favourably than a woman, which contractual document he claimed procedures his position and in what way he alleges this has arisen and/or in what way an implied term might have disadvantaged him. The order for particulars concluded with a note, commonly attached to such orders:

"Failure to comply with this Order may result in the whole or part of the Originating Application being dismissed before or at the hearing, or, as the case may be, the Notice of Appearance, and a respondent may be debarred from defending altogether."

Mr Boxell's appeal against that order was dismissed on 25 July 1995 in the circumstances mentioned.

Before us today is Mr Boxell's letter to this Tribunal dated 8 August 1995, headed with references to both of the appeals dismissed on 25 July, the appeal against the refusal to list and the appeal against the order that he supplies particulars. In the letter of 8 August he says:

"I am seeking leave of the Tribunal to appeal to the President, in the cases Appeal No. EAT/545/94 and Appeal No. EAT/717/95, on the grounds that none, of the points of law raised, was addressed and no ruling was given on any point of law raised.

2. Employment Appeal Tribunals do not have the power to avoid jurisdiction in this way and it is the duty of the legal system to resolve points of law. There is a growing tendency to avoid jurisdiction, which is not in the public interest.

3. In the first case, an application originally brought to speed up a County Court case, was stayed, and the Court ended up addressing none of the important issues raised. In the second case, a Regional Secretary and Chairman seemed to be curtailing Equal Opportunities Law, so that the Tribunal may more readily avoid addressing those same issues.

4. If leave to appeal is refused, it will be my intention to seek the President's leave to appeal."

That letter, though phrased as an appeal to me personally, has been properly treated by the Tribunal as an application to review the dismissal of his two appeals on 25 July and also as an application by him that, if we refuse the application to review them, he should have leave to appeal to the Court of Appeal. He submitted in support of that a skeleton argument dated 4 November 1995 which sets out in some detail his complaints about the way in which his applications to the Industrial Tribunal have been dealt with, in particular in relation to the stay pending the County Court decision and the order for particulars.

An application to review may be made to this Tribunal under Rule 33 of the Employment Appeal Tribunal Rules 1993 that provides:

"The Appeal Tribunal may, either of its own motion or on application, review any order made by it and may, on such review, revoke or vary that order on the grounds that - (a) the order was wrongly made as the result of an error on the part of the Tribunal or its staff; (b) a party did not receive proper notice of the proceedings leading to the order; or (c) the interests of justice require such review."

There is no ground for review under (a) or (b). There was no error on the part of the Tribunal or its staff. Proper notice was given to Mr Boxell of the preliminary hearing of his appeal on 25 July. He did not attend. We conclude, in those circumstances, that the only ground on which he can seek a review are that the interests of justice require it.

We have examined the papers and the circumstances surrounding these applications and we have reached the conclusion that the interests of justice do not require a review of the Appeal Tribunal's decision to dismiss both appeals. The first appeal, against the refusal to list, stood no hope of success because there was no arguable point of law. As already explained in this decision, the reason why the case was not listed at Mr Boxell's request in 1994 was that an earlier order had been made staying the proceedings pending the decision in the County Court. The County Court decision was not given until the end of 1994, so, at the date when Mr Boxell complained that they had refused to list his case, there was in existence a perfectly good legal reason for not listing his case. That was the order for stay. The order for stay was made in the exercise of the Chairman's discretion. It had been the subject of an unsuccessful attempt by Mr Boxell to appeal. Unsuccessful because he had appealed out-of-time, an extension of time was refused and he had not appealed the refusal of the extension. There is, therefore, no legal point that could possibly be raised in the first appeal against the refusal to list.

The second appeal was against the order for particulars. Again, there was no arguable error of law in that decision. The Tribunal has a discretion to order particulars of a case. Particulars were asked for and were ordered. They were of a relevant allegation, in fact, the most relevant allegation he was making, that was of unfavourable treatment compared to the treatment of a woman. There was no hope of that appeal succeeding. He could only appeal successfully against the exercise of a discretion to order particulars if he could show that it was contrary to legal principle to order particulars of the allegation or that no reasonable Tribunal would, in those circumstances, have granted the Council's application to order particulars. For those reasons that appeal stood no hope of succeeding. There was no arguable error of law.

For those reasons, the interests of justice do not require us to grant an application for review either of the orders dismissing those two appeal.

In those circumstances we refuse to grant a review. As we think there are no grounds for review, because there are no arguable points of law in either appeal, we refuse to grant leave to the Court of Appeal against our refusal of an application for review.