MR J R EDWARDS v (1) THE SECRETARY OF STATE FOR TRADE AND INDUSTRY (2) MELSTON INDUSTRIAL CHEMICALS LTD [2002] UKEAT 1117_01_2511

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1117_01_2511Case No Appeal No. EAT/1117/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J R EDWARDSAPPELLANT(1) THE SECRETARY OF STATE FOR TRADE AND INDUSTRY (2) MELSTON INDUSTRIAL CHEMICALS LTDRESPONDENT
Before
Mr Justice BurtonDate 25 November 2002
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the First Respondent For the Second Respondent MS SARAH MOORE (of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE SECOND RESPONDENT THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This is an appeal by Mr J R Edwards, against the decision of the Employment Tribunal at Nottingham, of his claim for a redundancy payment.[2]Melston Industrial Chemicals Ltd was his employer but that company went into liquidation and so the claim, effectively, was run against the Secretary of State in respect of a contribution towards redundancy payment from the relevant fund, insofar as the Appellant was entitled to a redundancy payment.[3]The facts were not in dispute before the Tribunal. They recite the findings as follows: 4(a) "Mr Edwards was employed by the Respondent Company as a warehouseman/driver on the 5 th December 1992 until the 18 th December 2000.(b) Mr Edward's date of birth is 11 August 1934." He would thus have become 65 on 11 August 2000.(c) "Just before Mr Edwards reached the age of sixty five, he was given the opportunity to continue his employment and decided to do so. He was aged sixty six when he was dismissed." Which dismissal, as we understand it, in fact resulted from the liquidation.(d) "Mr Edwards seeks payment from the Secretary of State under Sections 166 & 167 of the Employment Rights Act 1996."[4]In its Extended Reasons the Employment Tribunal recited section 156 of the Employment Rights Act 1996 which, subject to the relevant saving provisions, limit entitlement to a redundancy payment to an employee being 65 or less.[5]The Tribunal stated in its Extended Reasons as follows: 9 "In deciding this matter we referred ourselves to Nash v Mash/Roe Group Ltd [1998] IRLR 168 where a Tribunal found that an Applicant was entitled to present a claim for a redundancy payment despite being aged over sixty five. 10 We do not choose to follow that decision which is not binding upon us and which is based upon an issue of sex discrimination. 11 It is not part of Mr Edwards' case that he has been discriminated on the ground of sex either directly or indirectly. 12 His case is that he should have been allowed to work after he became sixty five and if made redundant thereafter should receive a redundancy payment. 13 His complaint is one of ageism which is not unlawful." Their conclusion therefore, which was unanimous, was that section 156 of the Act applied and the Appellant had no right to a redundancy payment.[6]The grounds of appeal are threefold in respect of this decision. The first was a limited one and that is this. In paragraph 7 of the Extended Reasons the Tribunal recited that the Appellant had made an application before them for an adjournment, on the basis that a case called Simpson v British Timpkin had been referred to the European Court of Justice in 1998 and that the Tribunal should await any decision. The Tribunal said, in relation to that, in paragraph 8:
"This is an unreported case. We have no indication as to the facts of this case and no knowledge as to whether any decision is expected. The application is rejected. The basis of Mr Edwards's claim is clear and should be dealt with immediately."
[7]In fact it appears that the case of Simpson never did go to Europe. In relation to a case which was said to have gone to Europe in 1998, the Tribunal was entitled to form the view that they knew nothing about the case, and that, if right it was that there had been a reference, it had been made some three years earlier and had failed to generate even an Advocate General's Opinion. As it happens, as we have indicated, it appears that the reference in Simpson , if made, did not proceed.[8]The appeal on the basis that the Tribunal was wrong in refusing an adjournment on that ground is, in our judgment, totally without any substance at all. First, this was an application for an adjournment, which was dealt with well within the discretion of the Employment Tribunal. They clearly had the right matters in mind, namely whether anything would or could be gained by an adjournment and the total uncertainty about the position, while the facts were clear before them, and no doubt they also had it in mind that if anything arose out of the European judgment, if there ever were one, matters could be resolved later on appeal if necessary. All matters were in our judgment fully in mind before the Tribunal. But in any event, as it turns out by way of gilt on the gingerbread, it is now clear that no adjournment would have in fact gained anything whatever – indeed, it would have resulted in quite unnecessary delay – because in fact there was no Simpson European reference. In those circumstances the ground of appeal in question is not justified.[9]The second ground which we propose to deal with today is this. It is sought to be argued, by way of a Notice of Appeal, that the consequence of a refusal by the Secretary of State of a redundancy payment to a man aged over 65 is one of indirect sex discrimination. This is not an application that was made below. It is not an argument that was run below; indeed, it is quite apparent from the part of the decision to which we have referred, that such an argument based on sex discrimination was abjured by those advising the Appellant or at any rate if he had no advice, abjured by him personally. But, in any event, no evidence at all was adduced in respect of it by the Appellant, and consequently not by the Respondent.[10]We have had referred to us a decision in the Employment Appeal Tribunal in Harvest Town Circle Ltd v Rutherford [2001] IRLR 599 , a decision of Lindsay P, Mr Dawson OBE and Mr Thomas CBE, which allowed an appeal from an Employment Tribunal which had considered that in similar circumstances there was indirect discrimination. We are told that that may be further consideration by the EAT of that case on a further appeal after remission. It is quite apparent that in the Rutherford case there was considerable evidence at the first Tribunal hearing as to the statistics on the basis of which an indirect discrimination argument could be run. The Employment Appeal Tribunal concluded that the Employment Tribunal was unable to reach the conclusion it did on the basis of the statistics put before them. Lindsay P's conclusion was that there were serious flaws in the approach adopted by the Employment Tribunal in finding that the unfair dismissal and redundancy provisions were indirectly discriminatory on the basis of the evidence before it. In this case there was no evidence, no statistics, no argument and no conclusion by the Employment Tribunal. Of course, it may turn out that if the Applicant in Rutherford is eventually successful, the Respondent may choose to apply that conclusion to this Applicant or any other Applicants.[11]However, so far as the legal position is concerned, there is nothing in this case which this Appeal Tribunal could, if I can put it in this way, get its teeth into, nor indeed, a fortiori, into which the Court of Appeal could get its teeth, because no evidence was called in this regard before the Tribunal, none was tested and the suggestion that the matter now be brought in is far too late.[12]The third ground that is put forward is based upon the application of the Human Rights Act 1998 . It is said firmly by the Appellant that the conclusion, which the Tribunal rightly said was based on ageism, is in breach of the Human Rights Act 1998 , because the entitlement to a redundancy payment is said to be property within Article 1 of Protocol 1 and that by virtue of Article 14 there is discriminatory application of that Article.[13]In extremely helpful and persuasive written submissions put in on behalf of the Respondent by Ms Moore of Counsel, a very powerful argument has been put forward as to why there is no breach of those Articles by the present statute. But whether that is right or not, what is absolutely clear is that the terms of the section which excludes the right to redundancy for any employee, male or female, over the age of 65, are clear and cannot be rewritten or reinterpreted under the jurisdiction which the court has under the Human Rights Act 1998 to seek to interpret existing legislation in accordance with the Human Rights Act 1998 if there were otherwise incompatibility with it.[14]Consequently, the only way in which the Appellant in this case could be successful would be by the obtaining of a declaration that section 156 of the Employment Rights Act 1996 is incompatible with the European Convention on Human Rights . That is a declaration which this Appeal Tribunal cannot make, and the first and only place that could make such a decision would be the Court of Appeal.[15]It is against that background that we then turn to what has happened this morning. The appeal has been listed for some time and the parties have both had notice. There was an order made by Lindsay P on the Preliminary Hearing on 18 February 2002, that this appeal be allowed to proceed to a full hearing, limited at that stage to grounds 1 and 2, which were, I think, the grounds excluding the fresh-proposed ground in respect of sex discrimination, and further ordered that Skeleton Arguments be exchanged between the parties and lodged with the Employment Appeal Tribunal not less than 14 days before the date of this hearing. It was at that stage that leave to amend the Notice of Appeal to add the additional ground, by way of sex discrimination, was given, if it was thought appropriate.[16]At that stage, as still now, the Appellant remained unrepresented, although he did appear through Counsel instructed by ELAAS on the Preliminary Hearing. A Skeleton Argument was produced by the Respondents, as we have indicated. However, no Skeleton Argument has been produced by the Appellant.[17]There was an application by the Appellant to adjourn this case, made on Thursday last, in respect of which the position of the Respondent, the Secretary of State, was neutral, based upon the pending appeal to the Employment Appeal Tribunal, in the case of Rutherford . This of course related only to the fresh ground, the subject matter of the amended Notice of Appeal, which we have referred to as the second of the three grounds before us. That application for an adjournment was refused by the Deputy Registrar, although it was said that it could be renewed today.[18]On Friday there was communication between this Tribunal and a solicitor who indicated that she was assisting the Appellant on an off the record basis, indicating that the Appellant was slightly bewildered by the whole process and that she would attempt to see if something could be faxed by way of a Skeleton Argument, but that she thought that was unlikely. She was told that an adjournment had not been granted and, although one could be applied for again on Monday, there was no probability that any such would be favourably received.[19]At 5 o'clock on Friday afternoon the Appellant sent a fax from those same solicitors' fax machine indicating that it was sent from him personally rather than from the solicitors, albeit from their fax machine, and it said:
"I write with regret to inform you that, due to family circumstances, I will be unable to attend the hearing of the above case on Monday. I am extremely sorry to inform you at this such short notice. I would be grateful if at the hearing the President were able to consider the application for adjournment that I made earlier today and/or consider adjourning the case in any event due to my unforeseen inability to attend. Please pass on my apologies to him."
It is apparent from that letter that the nature of such family circumstances is not disclosed, nor in particular the nature or reason for what is said to be his unforeseen inability to attend.[20]We have considered today the question of an adjournment. Very properly, Ms Moore has referred us to the decision of the Court of Appeal in Tienaz v London Borough of Wandsworth 16 July 2002, unreported [2002] EWCA CIV 1040 . That is a case in which an application for an adjournment on medical grounds was refused by the Employment Tribunal sitting at London (South) which then proceeded to dismiss his claims in his absence. The Employment Appeal Tribunal allowed his appeal but refused permission to appeal to the Court of Appeal.[21]Permission to appeal to the Court of Appeal was granted by the single judge and was dismissed by the Court of Appeal. The Court of Appeal concluded that in all the circumstances the dictum in Maxwell v Keun [1928] 1 KB 645, so long relied upon in ordinary civil actions, also applied in relation to Employment Tribunal cases, which gave the power for interference by the Court of Appeal, notwithstanding the case that a decision on adjournment is a matter of discretion, if:
"It appears that the results of the order made below is to defeat the rights of the parties altogether…and the Court of Appeal is satisfied [it] would be an injustice to one or other of the parties."
That is a residual route for the Court of Appeal to interfere to avoid injustice.[22]That case was very different to the present case:(1) It related to an actual hearing at the Employment Tribunal where the consequence was the dismissal of the claim without the Applicant ever giving, and thus having recorded, his evidence.(2) He thus lost any chance of having any merits of his case considered.(3) There was medical evidence put before the court, albeit that the Employment Tribunal were not persuaded by it.[23]So far as this case is concerned, the relevant facts are as follows:(1) This is not the original Employment Tribunal hearing. That has taken place. The case for the Appellant is fully clear on the face of the record and its merits can be assessed without any additional facts being put forward.(2) The facts were in fact in this case largely if not wholly agreed, and formed a very small compass. The issue in this case is one of law so far as, at any rate, the Human Rights Act case is concerned, and not one based on any evidence – although for the purpose of any consideration of the alleged indirect sex discrimination case, more facts ought to have been adduced: that is long past, and does not arise out of any issue of adjournment today.(3) The Appellant is unrepresented and has at all times been unrepresented, and yet the nature of his case is entirely clear, without any further argument being put forward. Had he attended today, it in any event seems likely that he would have attended, as he has before, without representation.(4) No explanation is given as to the circumstances of his non-attendance today. No medical certificate is adduced and we are as able to decide the matter in his absence as we would have been in his presence.(5) Most significant, the position appears to us to be clear. The first ground, which needs no further embellishment and could gain from none, is, as we have already indicated, plainly unarguable. The second ground, namely the indirect sex discrimination fails on the grounds that we have set out, that there was no evidence that could have supported it, nor any argument below. The third ground we would have been unable to deal with, as we have already indicated, in any event.[24]If, therefore, there is any impact of the dismissal of the appeal today, it is, if anything, favourable to the Appellant in terms of triggering the opportunity to go to the first court which might be able to assist him on his issue of ageism; namely the Court of Appeal. If there were an adjournment then yet further delay would be caused, to no end, because we would in any event have to dismiss the appeal on this ground.[25]The only way in which it could be submitted, and Ms Moore very properly pointed this out to us, that there was some prejudice to the Appellant by virtue of the dismissal of the appeal without his being present, is that he is not therefore able to ask this Tribunal to grant permission to appeal. We do not see that as a prejudice. This is a case in which, as we have indicated, if there is any substance, notwithstanding the very persuasive arguments set out in the Skeleton Argument, the place to address the application for permission to appeal is to the Court of Appeal, which would be able to decide whether it is a case which merits argument before it.[26]We have been shown the decision in Whittaker v P & D Watson [2002] ICR 1244 , in which, in similar circumstances, it was not in issue that this Tribunal did not have the power or the jurisdiction to consider the question of incompatibility of statute with the Convention.[27]In that case, after hearing legal argument on both sides, the Employment Appeal Tribunal did give permission to appeal to the Court of Appeal. It is therefore clear that, notwithstanding the fact that it is not for this Tribunal to consider the question of incompatibility, the Tribunal in that case thought, at any rate having heard argument, that it was appropriate to give permission. We say nothing as to whether that is a course which can be followed, but it appears to us to be overwhelmingly right that the proper Tribunal to consider whether it can hear a question of incompatibility, and wishes to do so, is the court which has the jurisdiction to exercise, and that anything we could say as to whether we think it would be a good idea or not for the matter to be heard by the Court of Appeal would be, in this case at any rate, academic, and that even if the Appellant had been here we would have been likely to have reached that same conclusion.[28]This is not, therefore, a case in which any material injustice is done by dismissal of the appeal, because this is not a case in which proceedings which could otherwise have been run further cannot now be so run further. The power of the courts to give relief to the Appellant, if he is entitled to any, still exists in the shape of the Court of Appeal, if an application for permission to the Court of Appeal is made and is successful.[29]In those circumstances, we have considered today a further adjournment application; have taken into account what Ms Moore has said to us; we have heard from her that in the end she opposed an appeal on the basis of any adjournment pending consideration by this Tribunal of the further hearing in Rutherford and, for the reasons we have given, we refuse the adjournment application.[30]For those same reasons, having given consideration to all three of the grounds, we have concluded that all three should fail: the first two on the grounds that they are unarguable and ought to be dismissed in any event and the third that on the basis that, if there is any substance in it, it can only be considered by the Court of Appeal.[31]Consequently, we take the course which is the only one open to us, and would be even if the Appellant were here, namely of dismissing it and leaving the Appellant free, if he so chooses, to take the matter to the Court of Appeal for permission.