MRS P J BALL v ROYAL BOROUGH OF KINGSTON UPON THAMES [2002] UKEAT 1232_01_1906

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1232_01_1906Case No Appeal No. EAT/1232/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS P J BALLAPPELLANTROYAL BOROUGH OF KINGSTON UPON THAMESRESPONDENT
Before
Ms Recorder CoxDate 19 June 2002
[1]APPEARANCES For the Appellant MR SUTTON (Representative) MS RECORDER COX QC This is an appeal from the decision of the Employment Tribunal at London (South) promulgated on 29 August 2001 striking out the Originating Application on the grounds that it was misconceived having no reasonable prospect of success. The Employment Tribunal on the same occasion also ordered the Applicant to pay costs of £450 to the Respondent.[2]The Appellant, Patricia Ball, who is employed as a bursar and secretary at a Church of England Primary School in Surrey, had presented an Originating Application to the Tribunal describing her complaint as one of: "Equal Conditions and Pay" naming as Respondent the Royal Borough of Kingston Upon Thames.[3]The details of her complaint referred in general terms to unfair treatment in comparison with other permanent, full-time and permanent part-time employees at the school, in relation to pay for hours worked and annual leave and in addition in relation to pension entitlements.[4]Various documents were attached to the Originating Application. It was not however clear how her complaint raised any issue which the Employment Tribunal had jurisdiction to determine, in particular in relation to what seemed at that stage to be a claim for equal pay. The Respondent's Notice of Appearance asserted that the Appellant was actually employed by the governing body of the school, who would be the correct Respondents, and that they were unable to respond to her equal pay complaint until it was properly particularised.[5]The Appellant has been represented throughout these proceedings by her father, Mr Sutton, who has appeared before us today. After correspondence between the Employment Tribunal and Mr Sutton the matter was then listed for a Directions Hearing which was heard by a Chairman on 6 April. The Appellant herself did not attend but was represented on that occasion by Mr Sutton.[6]In paragraphs 4 and 5 of the Tribunal's reasons, the events which took place on that occasion are described. It appears that Mr Sutton indicated that the claim had nothing to do with the sex of any comparators and that he was complaining about the Appellant's treatment in comparison with other female teaching staff. The Chairman decided that it was: "Unclear under what jurisdiction the claim was being presented." and despite her questioning of Mr Sutton, she was unable to clarify the matter.[7]In fairness to the Applicant, however, the Chairman decided to give her another opportunity to make her claim understood and ordered her to provide written details of the claim by 27 April 2001. It is recorded in paragraph 6 of the reasons that "voluminous correspondence" was then received by the Tribunal, none of which complied with that order. General references were made to sections 45(a) and 46 of the Employment Rights Act 1996 but without any clear indication as to the alleged breaches of those sections or as to how the facts being alleged could be said to amount to any breach of their provisions.[8]The Tribunal state at paragraph 6:
"The Chairman, Ms Wallis considered the matter and decided that the basis of the claim was not going to be ascertained by this method and accordingly she gave instructions for the case to be listed for a preliminary hearing to consider whether the Tribunal has jurisdiction to consider the Applicant's claim under sections 45A or 46 of the Employment Rights Act 1996 or at all."
[9]They also record that, before that preliminary hearing, having been notified in a letter from Mr Sutton, that the Appellant herself might not be attending the hearing, a letter was sent on the Chairman's instructions which contained the following words: 8 "The preliminary hearing has been arranged to enable the Applicant to give evidence to explain the basis of her claim. Evidence cannot be given at directions hearings, the type of hearing that you previously attended. So the preliminary hearing is an opportunity for the Applicant herself to give evidence to clarify her claims."[10]And then a little later on the letter went on:
"It is therefore important that the Applicant attends the preliminary hearing and explains her claim which is still unclear." and then a little later still: "…all of the necessary information should be within the knowledge of the Applicant herself. It is therefore in her interests that she attends, bring with her, her contract of employment and any other terms and conditions upon which she relies, together with any other documentation. Copies should be supplied to the Tribunal and the Respondent."
[11]The Appellant did not attend the preliminary hearing, however, and Mr Sutton once again attended on her behalf. What occurred on that occasion is important and we therefore set out the relevant paragraphs (that is, paragraphs 10-15) of the reasons in full. 10 "The preliminary hearing commenced at 12.10pm and the Tribunal Chairman endeavoured to ascertain from Mr Sutton the basis of the Applicant's claim. Mr Sutton confirmed that it was based on section 45A of the Employment Rights Act 1996. The Chairman read that section out to Mr Sutton and asked Mr Sutton to identify the act or deliberate failure to act by the Respondent about which the Applicant complained. In other words what the Respondent had done or failed to do which was what the case was all about. The Chairman asked the question of Mr Sutton repeatedly and on a number of occasions Mr Sutton merely replied by reading out sub-section (2) of section 45A of the Employment Rights Act 1996. It was apparent that Mr Sutton was not prepared to answer any of the Chairman's questions and on occasions endeavoured to talk over the Chairman. Accordingly, in order to concentrate Mr Sutton's mind on the matter, the Chairman issued a warning that the Tribunal might have to consider striking out the proceedings on the basis that Mr Sutton's behaviour in his continued refusal to answer any of the Chairman's questions and his conduct in talking over the Chairman. 12 11 Further discussion took place including about section 46 of the 1996 Act. Mr Sutton confirmed that the Applicant was not a trustee of a relevant Occupational Pension Scheme and therefore section 46 could have no relevance. 12 Mr Sutton then proceeded to refer to various other sections of the Employment Rights Act 1996, all of which had no relevance. At one point he referred to an unlawful deduction from wages. The Chairman referred Mr Sutton to section 13 of the Employment Rights Act 1996 and repeatedly asked how the unlawful deduction arose. At that stage Mr Sutton handed in papers which disclosed that the Applicant had been offered the right to make back contributions to the pension scheme for a period 1991 and 1992 which she had been a part time employee. 13 The Chairman endeavoured to pursue that line of enquiry but the discussion again went around in a circle without any outcome. 13 14 The Chairman drew Mr Sutton's attention to the original order following the directions hearing on 6 April 2001 and finally, at 1.22pm, the Chairman explained yet again to Mr Sutton that the Tribunal only had the jurisdiction given to it by Parliament and could not hear any complaint. Mr Sutton was asked how the case came within the Tribunal's jurisdiction. Again Mr Sutton referred to the pension contributions. The Chairman pointed out that this was not mentioned at all in the Originating Application and that the Applicant had been offered the right, subject to payments of arrears of contributions, to pension rights during her part time employment. 15 The parties were then asked for submissions as to why the Tribunal should not strike out the proceedings as failing to disclose any cause of action and therefore having no reasonable prospect of success. Mr Sutton made submissions from which it was apparent that he had read a considerable amount of law but had no understanding of it. The Tribunal Chairman asked Mr Sutton why the Applicant was not present. Initially he received no direct reply but after the question was asked more than once the only reply that was given was that there had been a wedding in the family the previous Saturday (the preliminary hearing was taking place on Friday 10 August)."[14]The Tribunal retired and concluded that the case should be struck out on the basis that the Appellant had been given every opportunity to disclose a cause of action which fell within the Tribunal's jurisdiction but had failed to do so, and therefore that the case had no reasonable prospects of success. They decided that the prejudice caused to the Respondents by allowing this case to continue now outweighed any prejudice to the Appellant, by striking out the claim.[15]They record at paragraph 16 the following:
"Accordingly, the Tribunal announced that the Originating Application be struck out for failure to identify the jurisdiction of the Tribunal, despite both the order made at the directions hearing on 6 April 2001 and the preliminary hearing to endeavour to establish jurisdiction. The Tribunal noted that the Applicant had failed to adduce any evidence at the latter hearing and her representative had failed to answer any of the Chairman's questions. The Tribunal concluded that the proceedings were misconceived."
[16]There was then an application for the costs of the preliminary hearing, on the basis that the proceedings were misconceived and also on the basis of unreasonable conduct of the proceedings. Mr Sutton was given an opportunity to respond, but in paragraph 18 the Tribunal set out their reasons explaining:
"…in stark terms the nature of the Application made by Ms McCafferty and asked why the Applicant should not pay the costs. Again, the Tribunal received no direct reply and the only thing that the Chairman could note from a lengthy and unstructured response was that the case was not misconceived and that the Applicant was unrepresented and had the right to make the complaint to the Tribunal."
[17]The Tribunal retired again and concluded that, in bringing and conducting the proceedings, the Appellant had acted unreasonably, both in that the proceedings were misconceived from the outset and through the conduct of her representative. They duly awarded costs of £450.[18]The Notice of Appeal was settled by Mr Sutton himself. In the five grounds of appeal that he lists he complains, firstly of the Tribunal's conduct in striking out the Originating Application, describing it as an "abuse". Grounds 2-5 criticise the decision for being:
"…deliberately vague" and for concluding that the claim was misconceived, in the face of "
Full supporting evidence" and that the award of costs was "punitive" and also an "abuse". These points of appeal were developed in the pages which were attached to the notice.[19]Requested by this Appeal Tribunal to supply an Affidavit to particularise his allegations of misconduct by the Tribunal, Mr Sutton complied with that request. In summary, in his Affidavit he there complains of bias demonstrated by what he describes as a lack of patience on the part of the Tribunal and an unwillingness on their part to investigate the material supplied and by their suggestion that Mr Sutton should have obtained assistance from a solicitor.[20]The Chairman's comments, in response to Mr Sutton's Affidavit, are set out at pages 11-12 of our bundle and in his comments the Chairman denies the allegations of bias and observes that he can add nothing to the matters already set out in the decision appealed from.[21]We observe at this point that Mr Sutton stated in his Affidavit, at one point in paragraph 3:
"Despite expressing a view that the Appellant should be legally represented instead of represented by myself the Chairman failed to adjourn it to allow representation to be sought."
The Chairman does not respond to this suggestion specifically and it is not referred to anywhere in the Tribunal's decision, nor has that matter been pursued subsequently in any of the lengthy correspondence with Mr Sutton, taking place between him and this Appeal Tribunal, nor was it pursued today as part of Mr Sutton's oral submissions to us.[22]We think it unlikely, in the circumstances, that any application to adjourn, was in fact made at the time, not least because, given the concern expressed by the Tribunal about the Appellant's case and their need to understand it, it is likely in our view that such an application, if it had been made, would have been considered very carefully and reference certainly would have been made to it in the decision.[23]What the Chairman does say in his comments is that, following the decision to strike out he had listed the case for a review hearing to take place on 3 January 2002. The parties had been informed of this by letter from the Chairman dated 25 September and we assume that this was the Chairman's decision on an application made by Mr Sutton.[24]It appears, however, that no review hearing ever took place. The Notice of Appeal was served in October 2001 and since then all the documents and correspondence before us have passed between Mr Sutton and this Appeal Tribunal. In any event, no issue arises today in relation to any review hearing and we therefore make no further reference to it.[25]In the correspondence, to which we have referred, requests were made for production of the Chairman's notes of evidence for this preliminary hearing. That request was quite properly refused on the basis that no evidence was in fact ever taken before the Tribunal. A further request by Mr Sutton, that this preliminary hearing should be: "…uplifted to a full hearing" with orders for discovery being made against the Respondents, were also dealt with in the letter to him from this Tribunal of 1 May 2002. In that letter Mr Sutton was informed, correctly, that this matter was proceeding by way of preliminary hearing and that no Chairman's notes of evidence would be ordered, nor would there be any new documents produced for the Tribunal.[26]We have read a further letter dated 8 June 2002 from Mr Sutton and indeed another letter of 11 June, to both of which letters a number of documents were attached, in which essentially he repeats and develops his complaints that the claim was struck out, criticises the Tribunal, and in particular the Chairman, and renews his request for this to be dealt with as a full hearing and that the Chairman's notes of evidence be ordered.[27]Mr Sutton has appeared before us today and developed his complaints in relation to this appeal. He continues to represent his daughter but he had had the benefit of discussions before this hearing with Mr Giffin, via the ELAAS Scheme and Mr Giffin kindly sat beside Mr Sutton in court in order to offer assistance if necessary and to provide some moral support as he indicated.[28]Mr Sutton made his points to us succinctly and we have considered carefully all that he has had to say. We have also read a number of additional documents, to which he referred us in the course of the hearing this morning. We accept that Mr Sutton considers that he is acting very much in the best interests of his daughter and that he genuinely considers that she has been treated unfairly by her employers.[29]This matter is properly listed as a preliminary hearing and our task is therefore to decide whether any arguable error of law, in the Tribunal's decision to strike out the Appellant's application, has been identified, such as would merit this appeal going forward for a full hearing.[30]Having fully considered this matter we are unpersuaded that any arguable error of law has been identified in this case. We are all of the view that this Tribunal exercised considerable care in endeavouring to understand the Appellant's case, as advanced on her behalf by Mr Sutton, and to determine whether any complaint arose which they had jurisdiction to determine.[31]For the reasons set out fully in their decision they were unable, after some concerted effort, to determine that there was any justiciable complaint. Having considered the documents and heard from Mr Sutton this morning we find ourselves in a similar position. The complaint being advanced seems to relate to the fact that the Appellant is not receiving the proper entitlements due to her under the local government pension scheme and that her part time service is not being recognised.[32]Mr Sutton argues that there is a breach, in those circumstances, of section 45A of the Employment Rights Act 1996 in this respect, and in particular of subsections (2)(a) and (b) and subsection (3) of that section. However, we are unable to identify any complaint available to the Appellant under that section, or indeed under any other legislative provision, on the facts as we understand them to be.[33]In these circumstances, we take the view that the Tribunal were entitled to conclude that these proceedings were misconceived and that in all the circumstances there had been unreasonable conduct in the proceedings. We are unable to see any error of law, either in their decision to strike out the claim, or in relation to their decision following that, in the exercise of their discretion, to award costs against the Appellant in the sum stated and for the reasons given.[34]This appeal must therefore be dismissed and no doubt Mr Sutton will give very careful consideration to regarding our decision as providing some finality for the concerns that he has expressed on his daughter's behalf about her treatment.