Wheen v Oxford Brookes University [1998] UKEAT 195_98_1006

EAT
Wheen v Oxford Brookes University
[1998] UKEAT 195_98_1006 · 1998-06-10
MR JUSTICE MORISON (PRESIDENT) : There is a pattern to the five appeals lodged by Mr Wheen. In each of the cases to which the appeal relates he had unsuccessfully applied for employment by the named respondent. Having so failed, he then asked the prospective employer for reasons and, in due course, served on them questionnaires under the Sex Discrimination Act 1975 and the Race Relations Act 1976 . Other than his failure to be shortlisted for a post for which he regarded himself as either well qualified or excessively well qualified, he had no other reason to found a belief that his failure to be offered employment was either attributable to his sex or race. In short, he served the questionnaires in the hope that something might come up so as to embarrass the organisations concerned.Because of the searching nature of the questions which he was asking them, the organisations either resisted supplying any information, or provided him with what he regarded, as unsatisfactory answers. Thereupon, he filed an Originating Application complaining of discrimination and thereafter bombarded the Industrial Tribunal offices with correspondence.The Industrial Tribunals then made orders requiring certain things to be done, for example, providing particulars or paying a deposit, and being dissatisfied with their orders, he appealed to the Employment Appeal Tribunal when the office here is bombarded with yet more material.Usually the appellant includes within his grounds of an appeal an allegation of bias against the Industrial Tribunal. In accordance with its procedure the appellant is required by the Registrar to file an affidavit substantiating his allegations. In these cases Mr Wheen failed to comply with that order, and that part of his Notice of Appeal is then struck out.We have to say that having looked at all the papers in this case, we are quite satisfied that Mr Wheen has been misusing the tribunal and appellate procedures and that his appeals are an abuse of the process of this Court. None of the appeals is remotely arguable and a great deal of time and money has been spent on dealing with these cases.Accordingly, the President has asked that the files be sent to the Attorney General's Office so that a decision can be made as to whether proceedings ought to be brought against Mr Wheen declarng him to be a vexatious litigant.I turn to the appeals themselves and the background to them.On 24th March 1997 Mr Wheen applied for three positions (business development manager and two staff valuer posts) with the Leeds & Holbeck Building Society. In September 1997 he lodged his IT1 complaining that the respondents answers to his questions contained "nebulous, ambiguous and unconvincing reasons" for his being rejected, and that their answers to the questionnaires had been:"protracted, unhelpful, evasive, negative and not based on objective assessment".On 25th March 1997 Mr Wheen applied for the post of Property Manager with Craven District Council. In about July he presented his IT1 based in part on the replies he had received which he said had been:"protracted, inadequate, unhelpful, erroneous, evasive, inconsistent and not based on a objective assessment".On 1st April 1997 he applied to Oxford Brookes University for the position of Valuation Lecturer. He presented his IT1 in July 1997, partly because the respondents had, as he alleged:

"consistently failed to answer the applicant's legitimate questions"

and the respondents' responses have been:"protracted, unhelpful, erroneous, evasive, inconsistent and not based on objective assessment".On 4th April l997 Mr Wheen applied for the post of Estates Manager, which had been advertised by the Derbyshire Dales District Council. He issued his IT1 in July 1997:
"Because among other things the respondents have consistently failed to answer the applicant's legitimate questions, their responses have been unhelpful, erroneous, evasive, misleading, contradictory and not based on objective assessment ..."
On 18th April 1997 Mr Wheen applied to Railtrack Plc for the position of Estates Manager. He issued his IT1 on 18th August 1997 contending that he was bringing the complaint:
"Because among things the respondent's responses [ to his letters and questionnaires ] have been inadequate, unhelpful, prolonged, evasive, negative, obstructive and unconvincing ..."
The purpose of today's hearing has been to decide whether Mr Wheen has shown any arguable point of law in any of the five appeals. We shall deal with each of them in turn. He has not appeared before us, as is his right, but we can say that we have read all that he has asked us to take into account in relation to each appeal. For convenience, we heard all the appeals together.In relation to the complaint against Leeds & Holbeck Building Society, the Industrial Tribunal decided that it would hold a prehearing review. The reasons for their decision on the review were sent to the parties on 29th October 1997 following a hearing on 23rd October 1997. They ordered that the applicant pay a deposit of £100 as a condition of him proceeding with his application. Subsequently Mr Wheen complained to them as to the circumstances in which they had arrived at their decision and the Industrial Tribunal decided to grant his application for a review of their decision. Following a hearing on 2nd January 1998 an Industrial Tribunal Chairman reviewed the earlier decision and was satisfied, having carried out that review, that the substantive decision should be confirmed, namely that he should be required to pay a deposit. The Notice of Appeal in this case is against, as we understand it, the decision that was arrived at in October 1997, but which was subsequently confirmed on the review.Having looked at the Notice of Appeal and the correspondence supplied with it, we are quite satisfied that the Industrial Tribunal were entirely justified in holding a prehearing review in this case. They must have detected, as we have, that the complaint made to them was speculative, fishing and without substance. Accordingly, we are not prepared to interfere with the decision of the Industrial Tribunal, and we regard the review decision as correcting any technical defect that there may have been in the first decision. That appeal is unarguable, and will therefore be dismissed.In relation to Craven District Council, the tribunal required the applicant on 11th September 1997 to furnish further particulars of his application, but they noted that he had failed to comply in time, and accordingly, in due course, his application was dismissed.It seems to us that the Industrial Tribunal's approach to this application by Mr Wheen was entirely justified. They were justified in making an order for particulars; justified in striking the case out for non-compliance with their order. Mr Wheen made some attempt to provide particulars, but in truth because his application was an empty one, he was unable to provide any substance to his complaint, and the Industrial Tribunal were fully justified in taking the course they did. In those circumstances it is not arguable that the tribunal have erred in law, and the appeal must be dismissed.In relation to the case against Oxford Brookes University, the Industrial Tribunal ordered at a prehearing review that the sum of £50 be provided by way of deposit within 21 days from the date of the order which was sent to the parties on 6th November 1997. That decision was appealed.Again, it seems to us, the tribunal were obviously right to take the course which they did. They looked at the complaint. The Chairman was well able to decide that a prehearing review should take place in all the circumstances. There was not a hint of any merit in the application and it seems to us that the outcome of the prehearing review was fully justified. We therefore consider that there is no arguable point of law in the appeal which Mr Wheen wishes to advance against the tribunal's decision and it is dismissed.In relation to his complaint against Derbyshire Dales District Council, another case where incidentally, bias was alleged but cannot now be pursued for the reasons I have already referred to, the Industrial Tribunal first of all decided that they had no jurisdiction to consider his complaint of discrimination on the grounds of age, nor did they have any jurisdiction to hear his complaint of breach of contract since he was never employed by the respondents, nor did they have any jurisdiction to hear a complaint alleging breaches of human rights, losses of expectation and opportunity, malfeasance, misfeasance, nonfeasance and negligence. In relation to the complaint of discrimination on the grounds of sex or marital status, the tribunal Chairman indicated by a decision sent to the parties on 17th October 1997, that the application stood no reasonable prospect of success and as a condition of him continuing with that application, he was required to pay a deposit of £100.That seems to us, again, to be a decision which the Industrial Tribunal was fully entitled to take, both in terms of the decision to strike out what were manifestly hopeless complaints, and to require the payment of a deposit as a condition for continuing that which was hopeless but not without the tribunal's jurisdiction. Accordingly, for the reasons given by the Industrial Tribunal, they were right and we will not interfere with their decision. There is no arguable point of law.We turn, therefore, to the fifth appeal which is the case involving Railtrack Plc. This is an extraordinary appeal. The appeal is lodged against what is described a decision or letter of 17th October 1997 which Mr Wheen alleges was inaccurate. The letter of 17th October 1997 from the Industrial Tribunal says:
"I have referred your letter of 3 October 1997 to a Chairman who points out that the Tribunal is not an advice giving agency."
That is not a decision or order which is one which is capable of giving rise to an appeal in this case, although his Notice of Appeal has been treated as a competent appeal. The letter which the Industrial Tribunal refer to, namely a letter of 3rd October 1997, is contained at page 11 of our file. I have to say that it seems to me the Industrial Tribunal were fully entitled to write in the way that they did. Therefore, even if this was a competent appeal, it is an appeal without any merit and would have to be dismissed. But as I have said, it seems to me that the letter itself from the Industrial Tribunal does not constitute any kind of order or decision which can give rise to a competent appeal to this Court. For those reasons, also, the appeal is dismissed in that case too.I will indicate now that if any of the respondents named in these appeals believe that they have incurred expense or costs in dealing with the appeal so far, it would be open to them to make an application to the Court for the payment of their costs incurred by what have been, in our judgment, manifestly unreasonable appeals. This is a case where the Employment Appeal Tribunal would have jurisdiction to make an order for costs, but no order will be made unless one is sought with proper details of how much is being claimed, and Mr Wheen will obviously have an opportunity of dealing with any such application before it is considered by the Employment Appeal Tribunal.For the reasons given, therefore, in this judgment the appeals, and all of them, are dismissed.