Horsford v Nottingham City Council & Anor [1997] UKEAT 258_96_2204

EAT
Horsford v Nottingham City Council & Anor
[1997] UKEAT 258_96_2204 · 1997-04-22
MR JUSTICE MORISON (PRESIDENT) : This is an appeal from an Industrial Tribunal's decision which was promulgated on 15th January 1996. There has been a preliminary hearing of the appeal, held on 26th July 1996. The Employment Appeal Tribunal on that occasion directed that the appeal be allowed to proceed to a full hearing.At the beginning of January 1997 attempts were made by our Listing Office to find a date convenient for the listing of this case. On 3rd January 1997, those attempts to make contact by telephone were unsuccessful. On 6th January 1997 the Employment Appeal Tribunal wrote asking the appellant for the dates of his availability. On 8th January 1997 he indicated to them that he could not manage any date before November 1997, but without giving any reasons as to why that was so; he was invited to write with an explanation of his position. Nothing was heard further, and so on 28th January 1997 the Registrar directed that the matter be set down. On 7th February 1997 both parties were sent a Notice of Hearing for 22nd April 1997.On 11th April 1997 a telephone message was received by the Employment Appeal Tribunal from the appellant seeking an adjournment but without any reason being given for that application. On 14th April 1997 the Employment Appeal Tribunal wrote refusing that application. On 21st April 1997 the appellant faxed a request for an adjournment saying that he was suffering from stress and that a medical certificate would follow.On 22nd April 1997 the Employment Appeal Tribunal were faxed a medical certificate which indicates that the appellant is under the doctor's care from 22nd April 1997, and the certificates says "as a result of Acute Anxiety state and is unable to attend Court hearing". It is significant that the doctor has not certified the appellant as unable to attend his or her occupation: that part of the medical certificate has been left blank.In the light of the non-attendance of the appellant, on behalf of the respondents to the appeal, Miss Hampton has invited us to debar the appellant from appealing under Rule 26. She points out that he has shown little interest in progressing the appeal by narrowing the issues as was contemplated at the preliminary hearing, or by exchanging lists of authorities, or preparing a skeleton argument. It is pointed out that the appellant was difficult about the hearing before the Industrial Tribunal, in the sense that he tried to have that case adjourned just the day before it was due to begin, and on the third day asked that it should not continue as he was suffering stress and he was distressed on that occasion. The tribunal acceded to his application for an adjournment on the third day.It seems to us that exceptional circumstances will be required before the Employment Appeal Tribunal will exercise what appears to be a draconian power contained in Rule 26. We have a discretion in every case to exercise that power, but we say in this case that there is nothing in the facts which I have recited which leads us to the conclusion that that would be a fair or just way of dealing the matter now. It is our experience that regrettably on several occasions appellants do not comply with our Practice Direction and file skeleton arguments in due time. It would be undesirable for us to take the view that on every such occasion the appellant should be denied the opportunity of presenting an appeal. It is also our view that an appellant is not required to attend for the hearing of his appeal. We can and will deal with arguments which are presented to us in writing. In this case the appellant has presented a full Notice of Appeal setting out in clear terms precisely why he says the Industrial Tribunal erred in law. Counsel has indicated that she is in a position to deal with all the points which have been raised in that Notice of Appeal, and it seems to us that it would be desirable that the appeal should be adjudicated upon as though he were here and making the points which are contained in his Notice of Appeal. By taking that course, we are satisfied that we are then doing justice to the parties.A second point was raised, which I think can be shortly disposed of, which relates to the question of whether the Notice of Appeal was filed within time, and if not whether we should now deal with it.It becomes clear from an examination of the Court file that the Notice of Appeal was filed within time, and accordingly that question does not arise.In these circumstances it is our view that the correct course now to follow is for this appeal to be heard and determined having regard to the written representations which have been made on behalf of the appellant in the extensive Notice of Appeal which we have, and we so direct. Accordingly, we dismiss the application that we should debar the appellant from proceeding further.MR JUSTICE MORISON (PRESIDENT) : We have decided for reasons which we have given in a previous judgment in this matter, to hear this appeal despite the non-attendance by the appellant. We are content to do this in this case, not least because we have much written material submitted by the appellant for our consideration, and upon which we can rely in dealing with this appeal.In the first place we have a 15 paragraph original Notice of Appeal dated 26th February 1996. We have, secondly, a 13 numbered paragraph document which is headed "Notice of Appeal" but which we take to be the amended Notice of Appeal dated 28th October 1996 which was amended pursuant to the order made by this Court on 26th July 1996. Thirdly, we have a 19 page skeleton argument which the appellant filed in support of his appeal prior to the preliminary hearing in July 1996.Furthermore, we have a substantial bundle of documents which is called "New Evidence & Properly Informed Industrial Relations Practice" which was submitted to this Court on 15th July 1996 for the purpose of its use at the preliminary hearing. That bundle, amongst other things, contained submissions which were addressed to the Industrial Tribunal about the adequacy or otherwise of the employer's response to the statutory questionnaires which were served in this case. The Industrial Tribunal had the benefit of six days of evidence, and we have obviously got their decision. We have also had the benefit of submissions from Miss Hampton, who, if we may say so, has greatly assisted us today in a careful analysis of the points which are made in the Notice of Appeal.We turn in this judgment first to the essence of the Industrial Tribunal's decision which was sent to the parties on 15th January 1996. It is the unanimous decision of a tribunal held at Nottingham over a six day period extending from 16th October through to 20th December 1995, and the essential parts of it are that the complaint of unfair dismissal was dismissed because of an exclusion or waiver clause in the contract of employment to which the employee was subject to; that the employers did not unlawfully discriminate against him either on the grounds of his sex or the grounds of his race; but thirdly he was entitled to receive from the first respondent, the employers, a redundancy payment of £1,640.00.I should say that straightaway that the issue of redundancy was in our judgment entirely correctly raised by the Industrial Tribunal themselves who were astute to have spotted the point in the first place, and correct to have identified the fact that the right to a redundancy payment had not been waived in the contract of employment.We would also like to say, in general terms, that the decision of the Industrial Tribunal is clear and succinct. Indeed, its succinctness has been the subject of some complaint by the appellant in this case, which for reasons which we shall elaborate, we believe to be misplaced.The employee had been employed by the Local Authority, the first respondents, the Nottingham City Council, from 29th July 1991 until his employment ceased on 29th June 1994. His complaint was presented on 8th August 1994 and he was alleging race and sex discrimination and compared himself with the position of a Miss Bell, a white female.The Industrial Tribunal concluded, having regard to what was contained in the IT1, that some of the specific allegations of discrimination which were raised, had occurred more than three months before the complaint presented to the Industrial Tribunal. The Industrial Tribunal were of the view that it would not be just and equitable to extend time for those complaints, but noted that the earlier allegations were still relevant for the questions of victimisation. We shall return to that in due course.The employee was initially employed as a training and equality officer, and a higher post became available within the organisation, but only to people working on a temporary basis. The attraction of the more senior position and higher salary, was sufficient to outweigh the disadvantage of working on temporary terms and conditions, and in response to the advertisement that was put out by the Nottingham City Council, the employee applied for the position of a training consultant and was successful. He signed a contract, the terms of which are set out in paragraph 9 of the decision:

"9. The following provisions of the contract are important:-

"The contract is for a 12 month period from the date of your appointment and will be reviewed before the end of this period in order to determine whether the contract should be extended for another 24 month period."

"Two months written notice of termination by either side"

"At the expiry of your contract you will not be entitled to the benefit of the unfair dismissal rights under the Employment Protection (Consolidation) Act 1978. Completion of the attached acceptance slip will constitute an agreement to exclude those rights in accordance with section 142 of the Act."
10. The latter terminated by saying:
"Your other conditions of service will remain unchanged. Please confirm in writing that you accept the appointment of the terms and conditions stated.""
That offer of employment was accepted by the employee by letter dated 8th June and the terms of that letter are set out in paragraph 11:
"Thank you for your letter dated 3rd June 1992. I write to confirm that I accept the appointment of training consultant on the terms and conditions stated."
The employee took up his duties on 30th June 1992.Initially, his line manager in this new post was Mr Glendon Harris, and Mr Harris' line manager was Carmel Maguire, a female who held the post of Assistant Chief Executive. Glendon Harris complained to Carmel Maguire that she had been deliberately excluding the applicant from the activities which had been assigned to the female comparator Anne Bell, and thus putting her at a significant advantage and setting the stage for open competition between the applicant and Ann. The point being that by reason of the alleged preferential allocation of duties, she was acquiring more experience in post than he was able to do by reason of the less good duties which had been assigned to him. But he made no separate complaint of his own to Carmel Maguire, and she gave evidence to the tribunal, which they accepted, that she did not associate the employee with the complaint which had been made to her by Glendon Harris.Glendon Harris and Carmel Maguire did not get on well, as will be apparent. He left in October 1992 and his position became available for both the applicant and Ann Bell to apply for. Ann Bell was given a second interview, both of them were shortlisted initially, but the applicant was not. Neither of them was appointed to the position of Service Manager. The person who was appointed, Mr Delroy Brown is of the same sex as the applicant and of the same ethnic origin, and no complaint was made by the applicant at the time of this appointment.In the early part of 1993 the training post was open for continuation for a further year, and his contract was duly extended for a further one year period. The terms on which that offer was made to the employee was contained in paragraph 15 of the decision:
"I am pleased to be able to advise you that your temporary contract of employment has been extended for a period of one year and will be reviewed again at the end of that period.
Your conditions of service for the duration of the extension will remain unchanged."During February 1993 the employers became aware that the employee was actively involved in a family business. The respondent apparently have a rule that prior permission is required before any other paid employment is taken. There was some agitation between the employee, his trade union and his employers on this topic. Although there were mentions in correspondence of harassment and discrimination, it was noted by the Industrial Tribunal that harassment and discrimination was mentioned but there was no allegation that this was on the grounds of either sex or race.Early in 1994 the question arose as to whether Miss Bell or the employee should be continued in the employment, there being only finance available for one position. Both of them were asked to attend an assessment interview, but because it was very much a neck and neck event, each of them was required to submit a further proposal as to how the selection process should be dealt with. The applicant did not; Miss Bell did.Both of them asked if there could be a job-sharing arrangement, pursuant to a job-sharing scheme, but that was denied. Both were interviewed by a panel and she was appointed as being the better of the two candidates. As a result, his employment came to an end, since there was no more work of a kind for him to do with that Authority. The tribunal were satisfied that the reason why he did not get the job was not because of any possible complaint of discrimination which might or might not have been made, but simply because they were satisfied that the employers had applied the criterion of who was better qualified for the one remaining job.In relation to the complaint of unfair dismissal, the tribunal held that the right of the complainant to make the complaint had been waived under the contractual arrangements into which he had entered. That part of their decision is contained in paragraph 22 through to 25 inclusive.In relation to the redundancy payment they carefully considered the position, and came to the conclusion that he was indeed entitled to a redundancy payment and there is no cross-appeal against that decision.We turn therefore to the Notice of Appeal, by that I mean the second Notice of Appeal, which seems to us to be the pertinent starting point to consider the appellant's arguments.In the first place, he makes this complaint in paragraph 1.2:
"... the Tribunal gave inadequate reasons for its decision that it would not be just and equitable for it to consider allegations of discrimination prior to the three month period before the presentation of the claim."
On the facts of this case, we are satisfied that what the Industrial Tribunal said on this point in paragraph 3 of their decision was sufficient. The only effect of their refusal to exercise their discretion in the appellant's favour was to deny him a remedy in respect of any of the particular incidents on which he was relying were the tribunal to have been satisfied that any one of those was attributable to race discrimination. But it seems to us, that the tribunal were required as they accepted, to receive evidence in relation to those earlier incidents, both as proper background to the complaints of discrimination which were in time; and secondly, on the basis that they were relevant to the question of the victimisation claim. Therefore, the effect of the ruling of the Industrial Tribunal was not to exclude any proper investigation of those earlier incidents. Indeed, we are satisfied that they were fully investigated. If the Industrial Tribunal having heard the evidence about the earlier and later incidents had been prepared to draw the inference against the first respondents that the appellant had been unlawfully discriminated against either on the grounds of race or sex, then he would have been fully compensated for the real loss which he sustained which was the loss of his employment. Therefore, it seems to us, that the decision of the Industrial Tribunal cannot be faulted in the way in which they expressed it, because by acting in the way they did, it seems to us, they were not in any way prejudicing the true rights of the appellant to have his claim of victimisation and discrimination properly and fully ventilated. Accordingly, we are quite satisfied that there is no merit in the point which is made in paragraph 1.2 of the Notice of Appeal.As to paragraph 1.3:
"The Chairman's decision to split the case from a Wages Act claim was wrong in law and contrary to the principles in Chattopadyay v the Headmaster of Holloway School and others [1981] IRLR 487."
It is true that a separate complaint under the Wages Act had been lodged by this appellant with the Industrial Tribunal, complaining that on the termination of his employment he was not paid all the monies which were then due to him. He did not allege in that complaint that the behaviour of the employers in that respect was on the grounds of his race or sex. It seems to us that the discretion which is given to Industrial Tribunals under Rule 8 of the 1993 Procedure Rules, is intentionally drafted in wide terms. The Chairman was fully entitled in the exercise of his discretion to hive off that part of the claim from the rest of it. It seems to us that we cannot possibly conclude on the material which we have available, that the Industrial Tribunal Chairman either misdirected himself as to the way he should exercise his discretion, or had arrived at a decision which was so unreasonable that we should interfere with it. Accordingly we dismiss that part of the appeal in 1.3.In relation to paragraph 1.4, the appellant says this:
"The Tribunal failed to make a number of findings of fact, for example, there were 14 separate instances of less favourable treatment (discrimination) that the Applicant cited the majority of these are not referred to in the Tribunal's decision."
In order to understand this point better, it seems to us, one should turn to the skeleton argument which was submitted by the appellant when the case came before the Employment Appeal Tribunal in July 1996. There, in paragraph 2.4, he identified 15 complaints in respect of which he was contending that there were no findings of fact by the tribunal. We propose in this judgment to set out each one in turn and to indicate our response to it.2.4.1It seems to us that this is an issue which was dealt with in paragraph 12 of the Industrial Tribunal's decision.2.4.2This point was not raised, I think, in the IT1 and was not raised in argument before the Industrial Tribunal.I interpolate at this stage to point out that the appellant had the benefit of knowledgeable and distinguished Counsel acting on his behalf from the third day onwards in this case.2.4.3" Selection Process for Post of Service Manager Training " is dealt with adequately and properly at paragraph 14 of the Industrial Tribunal's decision.2.4.4Is dealt with in paragraph 16.2.4.5Is dealt with at paragraphs 20 to 21.2.4.6Is dealt with in paragraph 19.2.4.7Was not raised in his IT1.2.4.8 and 2.4.9They are both dealt with adequately in paragraphs 20 to 21.2.4.10Appears to be in relation to the Wages Act complaint, and is therefore dealt with in relation to 1.3 of the Notice of Appeal.2.4.11" Failure to allow Mr Horsford an Appeal within the grievance processes outlined in the Appellant's contract ". The position is that the grievances had been raised in respect of two matters which were extant at the time when his employment came to an end. They simply were not progressed thereafter. It seems to us that there is no merit in the argument that the tribunal ought to have taken the trouble to point that out.2.4.12" Hostile way in which the authority dealt with the Appellant after his complaint " is, I think, a reference back to an allegation that the employers failed to give him a proper reference. That is a matter which was not raised at the Industrial Tribunal.2.4.13" Refusal to make a redundancy payment " is simply a contention that we do not understand. The entitlement to a redundancy payment was, as we have indicated, not something that he had claimed for himself, but which was raised by the tribunal of their own motion.2.4.14Was a matter which was not raised in the IT1. As can be said of 2.4.15 .It seems to us therefore, having been through each one of the 15 complaints or 14 as the case might be, where the tribunal is said not to have made proper findings of fact, they either have or they were not required to do so in the circumstances of the case. Accordingly we are satisfied that there is no merit in paragraph 1.4 of the Notice of Appeal.As to paragraph 1.5, it seems to us, in the first place, that these matters relate essentially to his claim for unfair dismissal, which the Industrial Tribunal held to have been waived. Since we take the view that the tribunal's decision in that respect was correct, we do not need to say anything further about paragraph 1.5 of the Notice of Appeal, save that in relation to the selection process the Industrial Tribunal dealt with the matter satisfactorily in paragraphs 17 through to 21 of the decision.We now turn therefore to paragraph 2.0 of the Notice of Appeal. We are satisfied that the complaint that the tribunal failed to recognise that discrimination may be unconscious is, frankly, absurd. All Industrial Tribunals are perfectly well aware of the fact that discrimination may be conscious or unconscious. It seems to us that they are not to be criticised for having failed to make that point in their decision. The writing of decisions is not a question of using some kind of formula or form, but is a question of them setting out what is essential for the proper disposal and fair disposal of the arguments presented to them.In relation to 2.1, the tribunal is accused of failing to determine whether the respondent was treated less favourably than other persons would have been treated on the grounds of race and sex. We do not agree. We think that the tribunal have properly dealt with the complaint of race discrimination. That is one of the three complaints on which they had to adjudicate.2.2, "the Tribunal failed to compare the appellant with a comparator", that seems to us simply not to be sustainable in the light of the terms of the decision to which I have referred.In relation to paragraph 3.0, paragraph 19 of the Industrial Tribunal's decision deals with the point, and it is to be noted that the tribunal found as a fact that the appellant and Ann Bell were treated, in relation to job-sharing, in exactly the same way. It seems to us that that was a finding of fact which they were entitled to make and there are no grounds for believing that it can be criticised as perverse.Paragraph 3.1 is an allegation of perversity. In our judgment, that is again not made out. It is well-known to this Court what the correct test to apply is. It does not seem to us that there is anything in their decision on this point which even gives a hint that the tribunal are misdirecting themselves, expressly or by implication.We turn therefore to paragraph numbered 4.0 of the Notice of Appeal, where the appellant says:
"The Tribunal's decision makes no reference to the questionnaires issued by the Appellant and whether reasonable explanations were provided."
That, as a statement, is correct, and it is to be noted that in his skeleton argument the appellant has identified a large number of answers to the questionnaire which he says should have been dealt with by the Industrial Tribunal. It seems to us that the point made in the Notice of Appeal is a good example of the unfairness that can occur at the appellate process. Here, as we have already indicated, the appellant was represented for the majority of the time by distinguished and capable Counsel. We are told by Counsel for the Authority, who was present at the time and accepts having checked her notes, that the question of the answers to the questionnaires being potentially misleading and giving statutory grounds for the Industrial Tribunal to draw adverse inferences against them, was not at the forefront of the submissions made on the appellant's behalf, and indeed, probably did not feature at all in his submissions. The tribunal therefore were in the position of wishing to deal with those points which had been expressly made on behalf of the applicant who was properly represented by Counsel. It is not therefore fair to criticise the Industrial Tribunal for their failure to deal with points in their decision which they have not been asked to deal with in submissions made to them. But that said, we have in fact looked at the points which he was making in the annexe to his written statement of evidence which is contained in the large bundle to which I have referred. We propose for the purposes of this judgment simply to take an example which will suffice for present purposes.At paragraph 1.8 of his skeleton argument the appellant makes this point:
"The Respondents reply to question 2(a) is evasive and inconsistent with the documentation. Firstly, applicants are not short listed if they fail to meet the requirements for the post. Secondly, both application forms reveal that Ann Bell did not meet all the requirements for the post of Service Manager (Training). In fact an analysis of the assessment forms for Delroy Brown [ the successful applicant ] shows that he met fewer of the criteria than Bernard Horsford or Ann Bell."
The question to which he is making reference was this:
"Please state the precise reason why I was not short-listed for the final interview for the post of Service Manager in December 1992."
The answer was:

"Mr Horsford did not meet the requirements for the post."

We understand the appellant's point to be that he would not have been on the initial shortlist if the reason why he failed to get the job was because he did not meet the requirements of the job. The tribunal's decision on this point is set out at paragraph 14. It will be remembered that this decision is written in the context of a complaint of discrimination on the grounds of sex and race. A crucial finding in that paragraph was that a person of the same sex and the same ethnic origin succeeded in obtaining the post in preference to both the applicant and the comparator, Miss Bell. In those circumstances, we are not in the slightest bit surprised to be told that Counsel on behalf of the appellant did not seek to make as much of this point as the appellant now seeks to do. It is a point which has no merit whatever, and accordingly we are not surprised that Counsel did not take it. That being so, we are quite satisfied, having looked at the other points made in relation to the questionnaire, that there is no merit in paragraph 4.0 of the Notice of Appeal.In relation to paragraph 5.0, it is not entirely clear to us what is being said at this point. It appears to be reverting back to the complaint which he had made and with which the tribunal deal, that Miss Bell had been given the more important jobs so that she was able to obtain the experience which was necessary for her to have been retained in preference to him. To suggest that the tribunal, as this paragraph does, failed to consider these issues at all, seems to us both improbable and, on the basis of their decision, wrong. The tribunal have carefully looked at the complaint that there was unfair or unequal allocation of jobs. They do so in paragraph 12 of their decision. It seems to us that when they came to consider whether the reason why he was not retained whereas Miss Bell was, they were obviously having in mind all the points which were being relied upon as suggesting that the reason related to his sex, since that was the issue which was before them. They were satisfied that there was no sex or race element in the decision which was taken to retain Miss Bell and not to retain him. Accordingly we consider that there was no merit in the point which is being made in paragraph 5.0.That seems to us to deal also with paragraph 5.1. If in paragraph 5.0 the appellant was referring to the opportunities for obtaining promotion which both he and Miss Bell were seeking but which both failed to achieve because Mr Delroy Brown was appointed, then it seems to us in any event, that it would have been an empty complaint, since neither of them succeeded, and since somebody of the same race and sex did.As to paragraph 6.0, it is said:
"The Tribunal should have ignored completely any part of the Appellant's voluntary duties to his family business when considering the issue of redundancy."
It seems to us, with respect, the tribunal have dealt with redundancy in a way which cannot be criticised. We are not entirely clear as to what he says should have not been considered in this case. There is no suggestion in the decision that the employers chose him rather than her for redundancy because they thought that he would have the opportunity of earning through his voluntary work.As to paragraph 7.0, it seems to us that this contention, namely that the tribunal have substituted its own view as to who should be made redundant because they preferred Ann Bell's evidence to that given by him, and because of their comment that she was an impressive witness, is, if I might respectfully say so, nonsense. It shows a misunderstanding of what the Industrial Tribunal was in fact doing.At to paragraph 8.0 and 9.0, it is correct that the tribunal made an error of fact in their decision at paragraph 18. But, that error has no bearing on the outcome of the case or the conclusion that they arrived at in that paragraph. What the evidence showed was that the appellant had failed to submit proposals as to how the selection process should be dealt with, as the employers had invited him to do; whereas the comparator, Miss Bell had submitted such proposals. If the tribunal had said that in the first sentence of paragraph 18 they would have been entirely accurate. It seems to us that this is simply a minor mistake which can readily occur after a long and detailed hearing, but we are quite satisfied that it has no significance whatever as to the outcome of the case.In relation to paragraph 9.0, as we understand it, he is also relying upon his skeleton argument at paragraph 2.5.3 which is to be found at page 53 of our file. In that paragraph he sets out a passage from Miss Bell's evidence. But with respect, setting out a passage from the evidence without giving the context in which it occurs, and without setting out the totality of her evidence, is not going to be of assistance to us as an appellate tribunal. It was for the Industrial Tribunal to assess the value of the evidence which they were given, which parts of it they accepted and which parts they did not. The fact that an impressive witness gave certain evidence does not mean to say that the tribunal was necessarily going to accept that piece of evidence. Being impressive does not mean being 100% correct all the time. Accordingly there was no point of law raised by paragraph 9.0 in our judgment.In relation to paragraph 10.0, which comprises paragraph 10.1 and 10.2, the appellant complains that the tribunal found that there was no complaint of race or sex in a letter which mentioned harassment and discrimination. It seems to us that the proper implications of what was said in a letter which was written was entirely a question of judgment for the fact finding tribunal, and unless we are satisfied that they have misdirected themselves expressly or impliedly, we cannot interfere. We would not be inclined to interfere on the facts of this case. Having read the letters, we would agree with the Industrial Tribunal's interpretation of them.As to paragraph 11.0, the appellant makes a point which is not easy to follow, and was not raised in the IT1 and therefore may not have fallen for adjudication by the Industrial Tribunal. What the appellant's case appears to be is that the decision of the Industrial Tribunal that the respondents have a rule that prior permission is required before any other paid employment is taken, is inconsistent with the statutory provisions which govern the employment of Local Government officers. He refers to s.117 of the Local Government Act 1977 . We are of the view that he has got the year of the statute wrong, it is in fact 1972 , and s.117(1) provides that:
"If it comes to the knowledge of an officer employed whether under this Act or any other enactment by a local authority that a contract in which he had any pecuniary interest, whether direct or indirect (not being a contract to which he is himself a party) has been or is proposed to be entered into by the authority or any committee thereof, he shall assume as practicable give notice in writing to the authority of the fact that he is interested therein."
It seems to us that he has misunderstood the point which is being made in paragraph 16 of the tribunal's decision. The fact that there is a statutory requirement upon officers in Local Government to declare interests, does not mean that it is not open to the Local Authority either on an individual basis or on a collective basis to enter into a contractual obligation which restricts employees from taking other paid employment during the course of their employment with the Authority. It seems to us that he is confusing the two positions. What the tribunal have found is that there is rule that prior permission is required before any other paid employment is taken. It is to be observed that that is a rule which applies and can only apply whilst the employee is employed by the Local Authority. To suggest that a requirement in a contract of employment which is currently in existence that an employee shall not take any employment with any other employer is an unlawful restraint of trade, is a remarkable proposition. It seems to us that this is an empty point; empty, that is, of any legal merit. It is a regular feature of employment contracts that the employer contracts for the exclusive services of the employee during the contract of employment. The employee is free to go and work for another employer when his employment contract comes to an end, but not during his employment. In these circumstances, there is no merit in paragraph 11.As to paragraphs 12 and 13 of the Notice of Appeal, this is the only potentially arguable point of law since this is effectively the only point of law with which the tribunal had to be concerned, and that relates to the question as to whether the contractual arrangements between the parties constituted a waiver of his right to make a complaint of unfair dismissal, and that depends upon the proper interpretation of the events that occurred in the light of s.197 of the 1996 Act which is the consolidating statute. The Industrial Tribunal's conclusion, having reviewed those facts, is that when his contract was extended for one year, it was extended for one year with all the terms and conditions that had previously been in the contract which had been expressly accepted, and that included the waiver. They carefully directed their attention to the decisions of Dixon v BBC [1979] 2AER 112 and Mulrine v University of Ulster [1993] IRLR 545 , and concluded that the applicant's contract was extended rather than that he was re-engaged under a new contract. If he had been re-engaged under a new contract, there would have been an argument open to the appellant that there had been no waiver of his right for unfair dismissal. If his contract was simply extended with all the terms that had applied during the earlier period of the employment, then the Industrial Tribunal was entitled to arrive at the conclusion it did. It seems to us abundantly clear from the circumstances that the employee in this case accepted by conduct the offer of the extension of his contract which had been made to him. The offer of the extension to his contract was an offer that the contract in existence should be extended. The contract in existence contained the waiver, accordingly by continuing to work he was continuing to be bound by the waiver. In those circumstances, in our judgment, there is no merit in paragraphs 12.0 and 13.0 of the Notice of Appeal.Accordingly, there being no merit in the appeal, the appeal shall be dismissed.We would observe that we commenced hearing this case at approximately 11.15 a.m., it is now nearly 4.30 p.m. in the afternoon, and apart from the usual break at mid-day, this case has been under consideration for the whole of that period. It follows therefore that we have given the most careful consideration to the appeal, despite the fact that the appellant has not appeared. As he will be aware, it is open to him to apply to us for a review of our decision. We do not encourage to make that application. Any application would have to be considered on its merits. But it seems to us in the circumstances of this case that he will have to put forward some reason as to why he says that the points which we have set out in detail cannot be sustained in the light of some other argument which he thinks that he may have which was not set out in his skeleton argument presented to us on the earlier occasion.There is one further point which we ought to deal with, which is paragraph 1.0 and 1.1 of the Notice of Appeal that the tribunal erred in failing to consider whether the allegations of discrimination might have been part of a continuous process of discrimination. It seems to us that that allegation is simply unsustainable. This was an experienced tribunal. If one looks at the incidents which allegedly occurred, we are unable to detect that there was any kind of hidden practice or policy within the Authority. For the reasons set out in the skeleton argument on behalf of the employers, it seems to us that all those earlier allegations were self-contained and discrete allegations and did not have a continuing effect. But it would not matter in any event for the reasons we have given in our judgment, the tribunal have considered them, and considered them properly.Application for costs on behalf of the respondents is refused.