England v South London Family Housing Association [1999] UKEAT 1472_98_1005

EAT
England v South London Family Housing Association
[1999] UKEAT 1472_98_1005 · 1999-05-10
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT): We are going to deal with three separate appeals together. They are EAT/1474/98, EAT/1472/98 and EAT/1473/98. The purpose of these hearings is to determine whether Mr England has an arguable point of law in relation to any of the three appeals.The background to this matter must be stated. There have been something like 10 appeals to the Employment Appeal Tribunal presented by Mr England against decisions of Employment Tribunals. We have been told by Mr Pitt-Payne (to whom we are extremely grateful) from the ELAAS Scheme who has appeared on Mr England's behalf that Mr England estimates that he has filed some 14 applications to Employment Tribunals. In one of the Tribunal decisions, there is a reference to him having presented some 19 complaints to Employment Tribunals.The general scheme of these applications is that Mr England makes job applications to various Housing Associations and when he is not short-listed for them he complains that he is being discriminated against on the grounds of sex and/or race as the case might be. He has it in his mind that these sorts of Housing Associations engage in positive discrimination. He, Mr England, is a white male and he therefore anticipates when he applies for a job that he will be turned down on both those grounds. Thus one can see from the decisions in EAT/1472/98 and EAT/1473/98 which are job application cases, that he presents his IT1 to the Employment Tribunal without knowing the composition of the people who are on the shortlist, that is their race and sex. That said, of course if he has a genuine complaint it must be properly considered by the Employment Tribunal.We turn therefore against that background to the first appeal, which is EAT/1474/98 and involves the circumstances in which he came to cease to be employed by Bexley Churches Housing Association and Others after a period of 9 months' service with them. He made three Originating Applications against the Respondent, Bexley Churches Housing Association and Others, and 4 named individuals. He had been dismissed after 9 months' service, when he was 60 years old.The Tribunal set out the problems that they had in dealing with Mr England between paragraphs 4 and 8 of the Decision and the facilities they gave to him to enable him fairly to present his case. In paragraph 9 of the decision they identified the principle issues. They find as a fact that the employer is a small employer, only employing 4 people in a minute high street shop. The Applicant was appointed on 3 June 1996 to a one year fixed term part-time contract as Housing Officer. They say this:
"He deliberately omitted from his application details of at least 3 posts from which he had been dismissed for misconduct."
Whilst in employment he applied for the post of Director of Housing and was short-listed and interviewed. He was unsuccessful. Thereafter the performance of his duties deteriorated as the Tribunal elaborate, including an allegation that in January 1997 the person who was successful in the application for the post of Director of Housing came to meet the staff. The Applicant had not been told in advance and explained to the Employment Tribunal:
"that as the only man on the premises he expected to be told and to be introduced first. Neither happened and the Applicant turned his back and refused to speak to (the identified person) or to answer when she spoke to him. She was very embarrassed."
He was invited to say what his concerns were and that did not provoke a satisfactory response. The Tribunal record that on 6 February 1997 he wrote to another Housing Association making potentially embarrassing allegations of corruption, which were completely unfounded, against a person with whom he worked. Matters came to a head at a committee meeting on 26 February 1997 and he was dismissed for the reasons set out in paragraph 24. When he was told of his dismissal he demanded "the balance of his contract (three months) by way of notice." He demanded to work his notice. The contract in fact contained a break clause, permitting termination on one months' notice. He refused to leave and had to be removed by the police and the Respondents accepted, as was alleged against them, that they had not been prepared to give him a reference.The Tribunal's conclusion was that he had not been dismissed for asserting a statutory right, namely equal pay. His dismissal related to his own misconduct and not to any consideration of sex. Accordingly his complaint under that head failed. They were not satisfied that he had a valid claim under the Equal Pay Act. He had produced a study which did not amount to a study within the meaning of Section 1(5) of the Act. In any event, the people with whose work he was comparing himself did not do work of equivalent value. The principle reason for his dismissal was his attitude and conduct towards the person who was successful in the appointment compounded by his disobedience over various matters. The Tribunal said:
"We are satisfied that at the date of dismissal Mr Ashmole was aware of the minute allegations of equal pay and discrimination but the decision to dismiss him was not for that reason and acquitted the employers of any discriminatory treatment in relation to the appointment of the Director of Housing. He made a mess of his own interview for that post and performed less well than the successful candidate and the complaints were dismissed."
It will become apparent from the short background to this case that Mr England is familiar with the Employment Appeal Tribunal's procedures and is a person who is quite capable of drafting Notices of Appeal. He drafted a Notice of Appeal in this case dated 3 November 1998. We do not propose to go through this document because it seems to us to demonstrate that he simply wishes to re-argue his case before us, to re-open the facts and to invite us to do things which we do not have jurisdiction to do as he must well know.The Applicant has had the advantage of Mr Pitt-Payne appearing under the ELAAS Scheme as I have indicated. Mr Pitt-Payne raises two points. The first point is that he says the Tribunal have erred in law in their approach to sex discrimination. They ought to have asked themselves not why the Applicant was dismissed (although that was one relevant question) but having regard to the fact that they criticised the procedure which had been used by the employers (saying, on that basis, that had he got a qualifying period of service he might have succeeded in a claim for unfair dismissal) the question should have been asked why he was treated procedurally unfairly.It seems to us that that is not a point of any substance. The Employment Tribunal were plainly looking at the circumstances in which his dismissal came to take place and were fully entitled to come to the conclusion that there was no element of sex discrimination in the way in which he was treated. It was obvious from a recitation of the facts that the reason why he was dismissed was because yet again, he had committed an act of misconduct.The second point that was put attractively by counsel was that in paragraph 9 one of the issues which had been identified was "victimisation by failure to give a reference after his dismissal"; yet, says Counsel, it does not appear that that allegation was expressly addressed in the Tribunal's decision. We see the force of that, but it is significant as it seems to us to look at Mr England's own Notice of Appeal. He does not take this point himself. It seems to us that the reason why this point was not separately dealt with (and why Mr England made no complaint about it) is because it was obvious in the context in which this dispute between the parties was taking place that if, as the Tribunal found, the reason for the dismissal in this case was his misconduct the answer to the question as to why he was not given a reference was because the employers could not give him a reference which would be of any assistance to him, bearing in mind that he had been rightfully dismissed for misconduct. So we do not criticise Counsel at all for taking a point which was not there in the original Notice of Appeal, but we do think it significant that this experienced litigant had not taken this point. We think that that tells us the answer to the question why the Tribunal did not need to deal with it separately because the reason for not getting a reference and the reason for the dismissal were, in truth, at the Tribunal treated as one and the same.We turn therefore to the second two cases which as we have indicated are unsuccessful applications for employment. The first one we will take is EAT/1473/98 which is Bourne Housing Society Limited. His contention in this case was that he had been discriminated against on the grounds of race and/or sex by not being short-listed for the post of Housing Manager/Management Officer. Four of the candidates who were short-listed were white Europeans, one was Afro-Caribbean. There were 3 female and two were male, one of the males being white. The Applicant was informed on 16 February 1996 that he had not been short-listed and shortly after the receipt of that letter he telephoned the Respondents and spoke to a gentleman there, accusing the employers of race and sex discrimination. He did that without knowing the ethnic origin or gender of the short-listed candidates. He was invited to write to the Chief Executive with any complaint that he had to make and he responded by writing to them, demanding compensation and enclosing a race and sex questionnaire. Not surprisingly, the employers did not respond to that because in their view presumably the allegations were quite baseless in the first place.Wrongly (as it so transpired) the employers after they knew that he was complaining about not being selected had destroyed the various application forms from the other candidates. That was a point considered by the Employment Tribunal. They were satisfied that there was no racial or sexual discrimination against the Applicant. They considered that somebody on behalf of the employers had taken a cavalier attitude towards the destruction of the application forms but were satisfied that this was a genuine error. They were satisfied that the Respondents carried out an appropriate short-listing procedure in accordance with its Equal Opportunities Policy and the Tribunal considered that the response to the Applicant's allegations was as a result of inexperience, that is the destruction of the documents, and the Tribunal was not prepared to draw any inference on those grounds. They rejected the employers' application for costs.On behalf of the Appellant, Mr Pitt-Payne says in this case that the Tribunal's decision (although expressed to be in extended reason form and although the rules require an extended reason decision in a case of discrimination) is less than full and represents merely an assertion of the answers to the case without setting out any of the reasons why they have arrived at those answers. In our judgment that criticism might be fair in relation to other Tribunal decisions similarly worded but in the context of this case, it seems to us that it was a hopeless application right from the very outset. It was an application that was unfounded when it was made, should not have been made and it is not surprising the Tribunal dealt with it as briefly as they did. It seems to us unfair that if an Applicant makes an empty application he should then turn round and complain when the Tribunal deal with it peremptorily, having identified it for what it was.The same comment can be made about the other appeal in the case of EAT/1472/98. In this case, Mr England applied for a position and was not short-listed. It was a position of Housing Officer. 105 candidates made written applications for the post, including the Applicant. 9 candidates were short-listed, 4 non-white, 5 white, 2 being male and 7 female. A white male was short-listed. The Applicant was informed by letter that he had not been short-listed and on receipt, he telephoned the Respondents to ask why he had not been short-listed and was informed that it was because he was weak on the ability to identify repairs. He asked the gentleman concerned to confirm that in writing but there was no such confirmation, so he lodged an application on 28 February 1996 requiring the employers to put in a Notice of Appearance, which they did. They initially asserted that they had no record of him applying for the post of Housing Officer. They then got their procedure together and admitted that he had applied for the post but denied any race or sex discrimination.The Applicant submitted to the Tribunal that it was not true that he was weak on building repairs and should have been short-listed. The Respondent's case was that there was no discrimination and they asserted before the Tribunal that the Applicant was engaged on a crusade against Local Authorities and Housing Associations on the grounds that they discriminated their employment policies against white males. It was in this case that some indication was given that he had brought 19 such cases. They were complaining that the Applicant was using the questionnaire procedure to make out a prima facie case for himself when he had none when he commenced the proceedings. The Tribunal concluded that there was no race or sex discrimination. They were prepared to agree with the Applicant that he should have been short-listed. However they were of the view that it was not surprising that an innocent error was made in the Applicant's case bearing in mind that the prospective employers had 105 application forms to consider. The application for costs made by the prospective employers was dismissed.In this case it is submitted again that the essence of the Tribunal's decision is set out in very short form in a way which was not sufficient. We have to say that we do not agree with the point which is made in this appeal for the same reasons we have given in relation to the appeal EAT/1473/98. In these circumstances, we are satisfied that there is no merit in any of the three appeals which Mr England wishes to raise and they will all be dismissed.Mr England's cases have been considered by the Employment Appeal Tribunal before. In a lengthy judgment given by my colleague, Mr Justice Lindsay, and two lay members, Mr England was given a warning shot "across his bows" in relation to the question of costs in any future appeal. It is a case therefore where we are considering whether to make any orders for costs in relation to these three appeals and will now hear Counsel on that question.

Costs

We have already referred to a previous decision of the Employment Appeal Tribunal and it is to be noted that at page 19 of the transcript, the learned judge was dealing with an application that was made to him that the prospective employers should have their costs. What the Court said was this:
"Accordingly we make no order for costs in the Respondent's favour but we do wish to fire a shot so to speak across Mr England's bow. We are told that there are other cases of a not dissimilar nature being pursued by Mr England. He knows of the existence of Rule 34 as to costs before the Employment Appeal Tribunal. He now has a much wider knowledge of the likely approach of an Employment Appeal Tribunal to appeals. He does run a grave risk, even if he is penniless and proves himself to be so, that he might incur an order for costs against him in other cases. Obviously whether or not there is to be an order for costs in other cases is a matter exclusively for those who hear those other cases, but it will be within the proper range of those seeking orders for costs in later cases to refer to the application made by the Respondents in this case and our response to it. In other words, Mr England has escaped an order for costs once here before us but it does not follow that he will necessarily escape an order for costs in other cases."
It seems to us that in relation to the appeals in respect of the Bourne Housing Society Limited and the South London Family Housing Association (both those relating to applications for employment which were unsuccessful) it would be appropriate and proper for us to exercise our power to make an order for costs under Rule 34, which we do. We regard these appeals as effectively frivolous in the sense that the applications themselves in the first instance were substantially frivolous. That is not to criticise Mr Pitt-Payne for the arguments that he has addressed to us.It seems to us (as we have indicated in the judgment) that the quality of the decision of the Employment Tribunal is related to their impatience at having to deal with completely unmeritorious cases, as those two were. Accordingly, (this being essentially an ex-parte procedure) the Respondents have not this time had an opportunity to ask for costs, but rather than incur extra expense in a further hearing we make it plain that an order for costs will be made if an application for costs is made to us in writing within 7 days.When that application has been received, (if it is made) then Mr England will be given an opportunity not to say why an order for costs should not be made, but to say whether the amount of costs that is being sought against him is proper or excessive in his view. In the light of his response, it will then have to be determined whether there is a need for any further hearing or whether it can be dealt with on the basis of written submissions of the parties.In relation to the third appeal, we consider that that is somewhat different. That related to the termination of his employment. It seems to us that it would be over harsh to make him pay costs in relation to that appeal, having regard to the submission which was made to us (which is quite right), which is that it is a hurdle that Appellants must overcome to go through a preliminary hearing stage. It is our experience that there are many appeals in relation to unfair dismissal and related matters which do not overcome that hurdle and it seems to us that this appeal was not out of the ordinary or so exceptional as to justify the making of an order for costs. Therefore the order is confined to those two other appeals.