Maxwell v Southport College [1995] UKEAT 608_95_2710

EAT
Maxwell v Southport College
[1995] UKEAT 608_95_2710 · 1995-10-27

JUDGE HULL QC :

This is an appeal to us by Mrs Mary Maxwell against a decision of the Shrewsbury Industrial Tribunal given after very long hearings between 31 October and 4 November 1994 and 20 and 24 March 1995, a total of 10 days. She has been represented today by her husband, Mr Maxwell, who has made a number of submissions to us.The case is in our list under our practice direction to see whether we can, with the assistance of Mr and Mrs Maxwell, find any point of law in the case. Under section 136 of the Employment Protection (Consolidation) Act 1976, Parliament has given us jurisdiction only to consider questions of law. We have no jurisdiction to investigate or give opinions on or make findings of fact at all. In those circumstances, if we are to have jurisdiction, we must find a fairly arguable point of law.The commencement of the proceedings was by an application to the Industrial Tribunal on 22 November 1993 by Mrs Maxwell against Southport College, her employers. She said in her application that she had been employed by the college from September 1983 until her employment ended on 31 August 1993.The complaints she made which are, of course, matters for the Industrial Tribunal and not for us, are, as she put it, unfair constructive dismissal and an equal pay claim. It was enough for her to demonstrate a dismissal and that it was unfair. She gave short particulars in paragraph 10.The Shrewsbury Tribunal, as I say, considered that complaint at very great length and their decision is a long one, starting at page 20 of our bundle; they dismissed the complaints made to them, both under the Equal Pay Act and Sex Discrimination Act and for unfair dismissal and it is against that decision that the appeal is made.We look to see what is said in the notice of appeal, that starts at page 1 of our bundle and it is put shortly like this by Mrs Maxwell. She said that the Tribunal erred in the following ways:
"(a) Failed to clarify the letter of the Law of the Equal Pay Act (b) Failed to allow Issue Estoppel, written into a previous decision by Liverpool Tribunal (c) Gave wrong advice to Appellant to drop Constructive Dismissal and substitute Unfair Dismissal instead."
Of course, it may be shown that those all involved points of law which are arguable, so we look to see what is said then.At page 2, Mrs Maxwell gives details and then she adds a great deal of substance with various contentions in the following pages but it is enough for me to refer to page 2. On page 2 she says:
"EQUAL PAY ACT 1970: if a woman is doing work which is `Of the same or a broadly similar nature to that of a man, and the differences (if any) between the things that she does and the things that they do are not of practical importance ' then she is entitled to equal pay ..."
That is the nature of the claim and I shall refer to the facts on which that is based, as set out in the Industrial Tribunal findings.
"2. ISSUE ESTOPPEL: Paragraph 39(b) ... The Shrewsbury Tribunal were bound by Law to accept the wordage of the previous Liverpool Tribunal (see Liverpool Tribunal reasons, page 6, marked with arrow) which stated `her contract should be made permanent'. This wordage did not say `her post'. It said `her contract '. There is a world of difference here insomuch as `her post' could refer to some other person who may succeed to her job, but ` her contract ' can only refer to the Appellant and no other person ."
Pausing there, it was explained to us by Mr Maxwell today that referring to a permanent contract meant that the employers, the College, were obliged by the language which they used on that occasion to employ her under a contract for life.The third complaint is put like this:
"The Shrewsbury Chairman on the Preliminary hearing indicated that there was no case for Constructive Dismissal, yet near the end of the Main Hearing when the aforementioned Issue Estoppel point was raised, said to Respondent's Counsel `This sounds like Constructive Dismissal?' He then went on to ask Appellant `Would you like to re-open the Constructive Dismissal issue?' - but by this time she was so worn out (she had no representation) she was not capable, especially as she felt she had done more than enough to prove Unfair Dismissal, Victimisation and breach of Equal Pay Act, anyway.
The Shrewsbury Chairman was out of order, by:(a) In his initial indication that there would be no case for Constructive Dismissal(b) In expecting the Appellant to know - at the end of a long hearing - whether to re-open Constructive Dismissal (especially, when in answer to an earlier question by the Appellant as to whether it was fair that the other side had a Barrister, he replied `I'm your Barrister'."So that is the nature of the complaints. I do not need to go into all the details of them before I go to the decision of the Industrial Tribunal. They dealt with all the matters which are complained of. Dealing with the question of like work for like value or equal pay, they say at paragraph 36:
"The applicant made a claim for like work or work of equal value for two hours work that she had done, teaching law to social workers. She put in a claim for payment at Grade 3 rate at £22.27 per hour. She was in fact paid at Grade 5 at £13.95 per hour. She alleged that Mr Alan Bristow had filled in for a lady whilst that lady was on maternity leave and had been paid at a grade 4 at £19 per hour. Mrs Maxwell did accept that the college management had stated that the hourly rate for part time lecturers and overtime for all lecturers was to be paid at the lowest Grade 5 rate. Lecturers did not have to apply for this additional work if they did not have to.
37. In this regard we were shown Exhibit R82 at page 327 of bundle R1 which was a memo dated 29 September 1992 from Mr Roy Thorpe, Assistant Principal (Personnel) to Departmental Managers dealing with rates of pay for part time teaching and that document makes it clear that Grade 5 was to be paid in respect of overtime contracts where the contract offered was in association with a course not taught on during the preceding two years. Where the contract was associated with the same course as that taught on during the previous two years then it was paid at the same rate as the preceding two years.38. We find as a fact that Mr Bristow had previously taught on the college business studies programme on an overtime basis and was therefore eligible to receive the same rate of pay. The applicant had not so taught on the college social work programme previously and was therefore only entitled to Grade 5."In other words, there was a legitimate reason, not connected with gender, which would apply either to a man or woman, why Mr Bristow should be paid a different amount for doing the same work during these two lectures or two hours, or whatever it was.They referred to the further and better particulars. Those are to be found at the relevant part, page 71 of our bundle; the particulars given were:
"From 1st April, 1992 rates of pay for part-time lecturing and/or lecturing by full-time staff on an overtime basis were discretionary but drawn from 5 nationally agreed rates. Previously the rate was in accordance with the level of work. After 1st April, 1992 staff who taught on the same course as that taught by them during the previous two years were protected by national agreement. Alan Bristow had previously taught on the college business studies programme on an overtime basis and was therefore eligible to receive the same rate of pay. The Applicant had not taught in the college social work programme previously as a part-time lecturer or as a full-time lecturer on overtime and therefore had no former rate of pay to rely upon. Part-time/overtime rate for the diploma in social work course was £13.96 per hour. Accordingly the Applicant's claim for £22.27 an hour was not accepted. The criteria was applied equally to all lecturers. It did not apply to the benefit of lecturers of one sex over lecturers of another sex."
They deal with that later on page 31 in paragraph 39(d). They say:
"We have already outlined the applicant's complaint above. Our view is that as set out by the respondents in their Further and Better Particulars. No question by way of discrimination in relation to sex arises. The reason for the difference in pay is set out fully in paragraphs 36, 37 and 38 of this Decision."
That was their finding on that matter.They went on to deal with other matters which have been the subject of complaint.With regard to the allegations of the Issue Estoppel. This, of course, is not a perfectly straightforward topic. In paragraph 42, they deal with it. I think it is probably better if I refer to the passage in the earlier litigation, which is alleged to found this issue estoppel. That is in the decision of the Liverpool Industrial Tribunal which sat at Liverpool on 1 and 2 December 1992 where Mrs Maxwell made a complaint against the same Respondent, Southport College. The Liverpool Industrial Tribunal said:
"1.(a) The applicant complained that the respondents discriminated against her on the ground of her sex. She cited various examples of what she claimed was their discriminatory conduct. Her complaints were that she was not offered a permanent contract until a very late stage, that a colleague returning from secondment was treated more favourably than she, and that she victimized for having expressed the intention of making a complaint of sex discrimination against the respondents."
That is what they said and in paragraph 3 of their decision they made a large number of findings of fact, all of which were referred to by the Shrewsbury Tribunal in due course.After dealing with other matters, they say in subparagraph 3(r):
"On 26 November 1992 the applicant attended a meeting with Mr Thorpe, Ms Val Eden and Mr Will White. The respondents had all along told her that her contract be reviewed in the Autumn of 1992. Mr Thorpe had come to the decision that her contract should be made permanent and at this meeting he told her so. The applicant's attitude at the beginning of the meeting was positive but it became more negative and she said that at the Tribunal hearing, she would `blow the College wide open'."
To make a comment which is slightly by the way, that hardly sounds like the offer of a permanent contract which was accepted by the Applicant, but there it is. It is said that that records plainly that she was to have a permanent contract and, as I say, Mr Maxwell has made it clear that that means a contract for her lifetime, and that that founded an issue estoppel. At page 35 the Shrewsbury Tribunal said this, at paragraph 42 of their decision:
"On the question of issue estoppel we have taken account of the principles as set out in the cases of O'Laoire v Jackel [1991] IRLR 170 and Munir v Jang Publications Ltd [1989] ICR 81. For there to be estoppel there must be in our view identical issues, a clear precise finding, and a finding necessary for the decision. In that regard, therefore, we consider issue estoppel arises in respect of those matters recited in the previous decision at paragraphs 3(i), (j), (l), (m), (n) and (o). We reject the contention that issue estoppel arises in respect of paragraph 3(r). This is not referred to in paragraph 5(c) of the decision as that only refers to paragraph 3(e) to (p). Additionally, we consider that 3(r) was not a finding necessary for the decision, and it is not necessarily clear and precise on the question of the permanency or otherwise of Mrs Maxwell's position as it refers to her `contract'."
They deal with other matters of issue estoppel.They go to the last matter of complaint in the notice of appeal:
"44. On the question of the applicant's unfair dismissal claim, the applicant was of course dismissed by virtue of the non renewal of her fixed term contract on the 31 August 1993. However, we consider that the reason for the `dismissal' in this case was for `some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held' in accordance with section 57(1)(b) of the Employment Protection (Consolidation) Act 1978, in that the reason for the non renewal of the fixed term contract was that the respondents wished to convert the fixed term contract into a full time open ended contract and the applicant steadfastly refused to apply for that post. In this regard there were a number of cases referred to, and which we have taken note of [and they refer to various cases]
45. We accordingly reject the applicant's claim to have been unfairly dismissed.46. In any event the applicant totally failed to mitigate her loss by her failure to apply for the permanent post."She, apparently, being a very talented and capable lecturer, went to another institution of learning, taking many, if not all, her students with her and has continued her lecturing there.Dealing with the substance of her complaint that she was taken by surprise, they say:
"48. Additionally, the applicant originally made a claim for constructive dismissal which she withdrew, which was again raised at the last day's hearing. Mrs Maxwell was given an opportunity to reinstate that should she so wish, but she chose not to do so. However, for the avoidance of doubt, had she done so, that claim would also have been rejected by this tribunal as we have not found any breach of contract by the respondents let alone breach of a fundamental term..
49. For the avoidance of doubt we have also rejected the applicant's claim for equal pay with Mr Bristow for the reasons we have set out in the body of this decision."They rejected both of the claims and in regard to the matters which arose in connection with those, in particular the alleged unfairness, the Chairman and the Members have told us what they have done about that in their very decision. In relation to the estoppel point, they have set out their reasons for saying that there was no estoppel here. Indeed, if one may make again a comment which is rather by the way, one would be surprised if there were an estoppel. The suggestion that the responsible Members of the staff of an institute of education could offer a permanent contract in the sense which Mr Maxwell explained to us, is truly incredible. What is perfectly clear here, to anybody who applies commonsense to it, is that what was being said was that this was to be a permanent post or permanent employment in the ordinary sense; employment which can, of course, be ended on proper grounds, but which is not intended to be periodical or short-term employment. So that is what the Tribunal found.As I say, there may be all sorts of things to say and a very great has been said at various times about the issues of fact which arise here. The question for us is whether, having looked at these matters, and considered the notice of appeal and what Mr Maxwell has said to us today, we can, with Mr Maxwell's assistance, for which, of course, we are grateful, find any error of law. If we cannot find an error of law which is fairly arguable, we are simply without jurisdiction and, if we were to embark on the appeal, we should be doing something which Parliament has told us, fairly and squarely, we are not to do.We have discussed it amongst ourselves after hearing Mr Maxwell and, indeed, before. We cannot, any of us, trying as hard as we can, discover any fairly arguable point of law here. It appears to us that this Tribunal approached this task in a correct way. The alleged errors of law - they are certainly alleged to be that - are not made out as fairly arguable points and, accordingly, the appeal will have to be dismissed at this stage to save the enormous amount of time and expense which would be incurred in having an appeal in which the Respondents were represented which, in our view, would have no prospect of success and, in those circumstances, the appeal must be dismissed.