GMB UNION v MR M FENTON [2003] UKEAT 0798_02_0710

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0798_02_0710Case No Appeal No. EAT/0798/02 & EAT/0046/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
GMB UNIONAPPELLANTMR M FENTONRESPONDENTMR M FENTONAPPELLANTGMB UNIONRESPONDENT
Before
Mr Justice BurtonDate 7 October 2003
[1]APPEARANCES For GMB Union MISS S MACHIN (of Counsel) Instructed by: Messrs Whittles Solicitors Pearl Assurance House 23 Princess Square Albert Square Manchester M2 4ER For Mr M Fenton MR M FENTON (the Appellant in Person) THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This is the hearing of an appeal by the GMB Union against the unanimous decision of the Employment Tribunal sitting in Manchester on dates in June 2002, that the Applicant, Mr Fenton, was discriminated against by way of victimisation contrary to section 4 of the Sex Discrimination Act 1975 .[2]Their decision was made on a very limited basis, because the Applicant, who had been not only a member of the Union but also employed by the Union, had alleged victimisation on the basis of a number of different ways of putting his case and a number of different incidents on which he relied, but the Tribunal dismissed all other claims of victimisation apart from one. In paragraph 76 of its decision the Tribunal summarises the bases on which he had alleged victimisation, namely that:(i) "the Applicant did not receive legal assistance in relation to proceedings for unjustifiable discipline;(ii) he received no (or at least delayed) legal assistance under Rule 27;(iii) there was a failure to provide victimisation benefit under Rule 54;(iv) there was a failure to follow Rule 6 Grievance Procedure;(v) there was a failure to investigate the breach of trust against the GMB Pension Fund…"[3]In relation to all those matters the Tribunal unanimously dismissed any claim of victimisation. The Applicant's claim was upheld only in relation to the sixth matter there set out, namely: (vi) "there was a failure to provide industrial relations support."[4]The brief history of the matter is that the Applicant had been employed as an Education Assistant at the Union's National College in Manchester from 1992 onwards. He had apparently joined the Union as a member in 1986 and he continued as a member of the Union until 1995 when he ceased to pay his subscriptions, in circumstances which have not been explained. He has told us that he then joined another union, the MSF Union, with whom he remained until shortly before February 2000 when he submitted an application to rejoin the Appellant union. He continued in employment as an Education Assistant until he resigned in August 2000, subsequently unsuccessfully claiming constructive dismissal.[5]The dispute which he had with his Union qua his employer related to the period prior to 1994, when the Union was denying his entitlement to participate in the Union Pension Fund, or Occupational Pension Scheme, by virtue of the fact that it asserted that he had not been an employee but employed on a contract for services. There was no dispute in relation to his entitlement to participate in respect of the period after 1994.[6]We do not know what in financial terms was the impact of this dispute. It does not appear likely that it was a great sum; but it is that which caused the disharmony which continued from about 1999 or so until the present day. It may be that as from that period he had been contemplating leaving his employment. He asserted, as we have indicated, constructive dismissal and lost, and so it may be that indeed he had been planning to leave. It may also be (and we simply speculate) that he had made enquiries as to whether his former union, the MSF, of which he was a member between 1995 and 2000, could assist in pursuing his claim, to which we have referred, in respect of his entitlement to have been a member of the Appellant's Occupational Pension Scheme prior to 1994.[7]But whatever may be speculated about either of those two factors, what is clear is that, after rejoining the GMB in February 2000, he applied to the Employment Tribunal himself, bringing the proceedings which were ultimately successful, as somewhat amended, in the limited respect to which we have referred, before the Tribunal, in respect of the refusal of the Appellant to allow him access to the Occupational Pension Scheme prior to 1994.[8]His claim was brought under the Equal Pay Act 1970 and/or the Sex Discrimination Act 1975 . He requested legal assistance on 11 July 2000 from the GMB to pursue itself, namely the proceedings that he had already started. That somewhat complex question, i.e. a union assisting a member to sue itself, is something that is not unknown and it is not outside the experience of the Union; and there was some question in the early stages as to whether it would not be advantageous to him and sensible for everybody if his membership were transferred down to the London branch in order that the question could then be pursued by the London branch. He objected to that course, claiming that it was in fact intended prejudicially to him, although the Tribunal in its Decision concluded that there was nothing objectionable or suspicious about the way that the Union acted, and that indeed it was acting in his best interest.[9]But though he thus remained having his matter handled by the Blackburn branch, he did not have any success in persuading the Union to accept his claim. There was a firm denial of his entitlement to membership prior to 1994 of the Occupational Pension Scheme, on the basis (as we have indicated) that he was not an employee.[10]He asserted that a number of steps that were taken by the Union, which became the subject matter of the victimisation proceedings (to which we have referred) were consequently objectionable under section 4 of the Sex Discrimination Act 1975 , by virtue of his earlier claim under the Equal Pay Act 1970 and/or the Sex Discrimination Act 1975 , incorporating the provisions of section 62 of the Pensions Act 1995 , which enabled similar arguments to be raised in respect of pensions as were only previously available in respect of pay ("the equal pay claim").[11]Section 4 of the Sex Discrimination Act 1975 reads as follows: 4(1) "A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has – (a) brought proceedings against the discriminator or any other person under this Act or the Equal Pay Act 1970 or Sections 62 to 65 of the Pensions Act 1995, or (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act or the Equal Pay Act 1970 or Sections 62 to 65 of the Pensions Act 1995, or (c) otherwise done anything under or by reference to this Act or the Equal Pay Act 1970 or Sections 62 to 65 of the Pensions Act 1995 in relation to the discriminator or any other person, or (d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act or give rise to a claim under the Equal Pay Act 1970, or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them or under sections 62 to 65 of the Pensions Act 1995.(2) Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith."[12]Mr Fenton, the Applicant, was not the only person on the staff of the College who was in a similar position, and there were at any rate two other gentlemen, a Mr Bradford and a Mr Lafferty, who also made complaint against the Union as to their non-inclusion in the Scheme.[13]Mr Fenton's equal pay claim came on, together with the similar claim by Mr Bradford, for consideration at a Preliminary Hearing in front of the Manchester Employment Tribunal chaired by Mr B J Doyle on 1 August 2001.[14]The Originating Application of Mr Bradford was ordered to be struck out on the ground that it was misconceived; the basis being that it had no connection with alleged discrimination, and it is recited in paragraph 5 of that judgment that Mr Bradford admitted that the alleged discriminatory nature of his claim was confusing to him and that the real question was one of his employment status. His claim, as we have indicated, was struck out. It was quite apparent that the reality of his claim had nothing to do with discrimination, and was one simply related to his employment status and, as will appear, his claim in respect of that employment status, by reference to section 1 of the Employment Rights Act 1976 , seeking declaratory relief that under his contract of employment he was entitled to pension retrospectively prior to 1994, has proceeded.[15]Mr Bradford represented himself before the Employment Tribunal at the hearing to which we have referred, as did Mr Fenton. Mr Fenton (no doubt thanks to the knowledge of employment law that he had to gain as a teacher at the college) managed to save his claim and avoid it being struck out. He did that by saying that he was going to seek to show that he was employed on like work with a woman, whom he identified as a Ms Sheila Bridge, and consequently that there was a gender discrimination aspect to his claim. He accepted that the central contentious issue was whether he was employed; but he asserted that on the basis of his reference to Ms Bridge, which Mr Bradford had not emulated, his equal pay claim should go forward. The Tribunal accepted this and did not strike out the claim.[16]That claim had not come to trial at the date when the hearing came on, in June 2002, of the victimisation case, the subject of the appeal before us today. It is, in the light of what has occurred, perhaps unfortunate that the equal pay claim was not heard first, but it was not.[17]The hearing in June 2002 at the Manchester Employment Tribunal was before Mr K E Robinson and members; and as we have indicated they dismissed most of the claims for victimisation but upheld the one in relation to the failure to provide industrial support, and they also dismissed a case of unjustifiable discipline brought by the Applicant against the Union. He withdrew a claim under section 12 of the Sex Discrimination Act 1975 .[18]The Appellant Union has appealed that decision on grounds relating to alleged errors of law by the Tribunal in relation to the question of whether there was a proper comparator for the purpose of the victimisation claim identified or at all, and as to whether the approach in that regard was correct; and also on the basis of alleged error of law with regard to causation, in relation to whether the protected act in fact caused or contributed to the reason for the victimisation.[19]Mr Fenton cross-appealed in relation to the subsequent hearing on remedy, at which the Tribunal only awarded him the sum of £1,000. Its reasoning in relation to that dwelt not only on whether and how far there was an effect upon him of the victimisation which it had found, but also took very clearly into account the fact that there has been a number of other acts of which he had complained, which he had said had caused him distress or injury to feelings, which it had not found in his favour, such that it was therefore unnecessary for the particular act of victimisation (the failure to provide industrial support) to be set into context; and any award simply had to reflect that act of victimisation alone.[20]That appeal and cross-appeal were due to be heard at a full hearing, having surmounted a Preliminary Hearing in relation to the original appeal by the Union, heard before Lord Johnston and a panel, and the President having subsequently ordered on paper that the other matters (including the cross-appeal) be heard at the same time.[21]However, there then intervened the hearing of the original equal pay claim (together with his unfair constructive dismissal claim, to which we have referred). That was heard, fortuitously or advisedly (it is not clear to us) before the same Tribunal chaired by Mr Robinson, as had heard the victimisation claim now before us, on 2 and 3 December 2002 and 10, 11, 12, 13 and 14 March 2003.[22]The Applicant was represented by leading Counsel, as was the Appellant Union. His claim for unfair constructive dismissal failed. His equal pay claim was withdrawn, and costs were ordered to be paid by him to the Respondent under Rule 14 (3) (a) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2001 in a sum of £2,874; and there has been, as far as we know, no appeal against that order.[23]The withdrawal took place in the course of the hearing, and led to the costs application and order, in the circumstances described by Mr Robinson in his Extended Reasons beginning at paragraph 137. At paragraph 143 Mr Robinson says as follows:
"143 In order properly to deal with the issue of costs relating solely to pension matters one has to return to Mr Doyle's decision and the quote therefrom set out herein. Despite the fact that Mr Fenton knew what Mr Doyle was asking of him during his evidence on Monday 10 March 2003 Mr Fenton gave this evidence and we quote exactly: "
It was to do with whether we were permanent employees, not gender… Nothing to do with gender… CLEARLY not to do with gender." (The capital letters represent the emphasis Mr Fenton put on that particular word). 144 A few minutes later he completed his evidence and after that discussion between the representatives and the Tribunal Chairman the Applicant withdrew his application and it was dismissed on withdrawal. 145 In dealing with the costs we had to consider Rule 14 of the 2001 Regulations quoted at the head of this decision. 146 We believe that the Applicant has conducted these proceedings in a misconceived way… 147 We believe there must be an award of costs against the Applicant in relation to the pension issue." which the Tribunal subsequently calculated.[24]In the light of that the Appellant Union, on the date which was intended to have been the hearing of this appeal, sought an amendment of its Notice of Appeal, to rely on what had occurred subsequently (to which we have just referred). The matter was dealt with by Cox J and a panel, the amendment was allowed and the case adjourned, in order to give Mr Fenton proper time to deal with it.[25]The basis on which the case was put by way of the amendment was then twofold, although Miss Machin has only effectively run the second of the two ways of putting it before us today.[26]The first was that there was in fact, in the light of what had taken place in March 2003 at the second Employment Tribunal, no protected act. That may be in substance how she and her clients see the position because their case is there never was an equal pay claim. That, however, in our judgment, cannot stand up in law, because the question, at the date of the assessment of whether there has been victimisation, is whether there had been proceedings brought or claims made against the alleged discriminator or any other person under the relevant Act, and at the stage of the hearing of the victimisation claim in June 2002 (and a fortiori at the date of the alleged victimisation), because there had been no resolution by then, there had been and still were such claims.[27]But her alternative and powerful way of putting the case was by reliance upon section 4 (2) of the Act (which we have already quoted). She accepted that the onus of proof was on the Appellant Union in that regard, but she submitted that the provisions of section 4 (2) apply, which means that the Applicant was not therefore entitled to rely on the alleged protected act and/or the Tribunal was obliged to disregard it.[28]That has been the issue before us today. Her submission has been twofold:(1) The same Tribunal as heard the victimisation claims and narrowly decided that there had been one act of victimisation had now concluded that the original equal pay claim was misconceived, and that that was effectively res judicata for the purpose of section 4 (2).(2) Despite the absence of the use of the words "false and not made in good faith" in the conclusion of the Tribunal in March 2003, when they were addressing what was in fact a costs application, which required different language, nevertheless the conduct of the Applicant, as characterised in his own admission at the Tribunal, clearly showed that the equal pay claim had been false and not made in good faith. The appeal should be allowed, and there was no point in our remitting the matter to the Employment Tribunal to consider, by reference to the well-known principles enunciated by Lord Donaldson MR in O'Kelly v Trust House Forte [1984] QB 90, which, amended slightly to deal with the present situation, would be interpreted as follows:
"The Employment Appeal Tribunal can correct errors and substitute its own decision insofar as the Employment Tribunal must but for the error have reached such a decision. But if it is an open question how the Employment Tribunal would have decided the matter if it had not been vitiated by that error, the Employment Appeal Tribunal can only remit the case for further consideration."
[29]She submits that, now we know that the Tribunal was labouring under error, because it had not appreciated at that stage that the equal pay claim was not being brought in good faith, as only became subsequently clear, it is inevitable that if the matter was now referred back to the very Employment Tribunal which had already decided that the original claim was misconceived, it would be bound to find that it was also in bad faith, for the purpose of removing the necessary plank for a claim for victimisation under section 4.[30]There is no doubt that there is good reason for the limited ambit of the claim for victimisation. People are and can be badly treated in all kinds of different circumstances, or feel themselves to be so. There are of course the laws of libel and slander. There are the provisions of the Protection from Harassment Act 1997 . But, those apart, if people feel they are being badly treated or picked on, then they must seek to establish, if they can, some tort or some express or implied term of the contract (if there is a contractual relationship between them and the party of whose conduct they complain) of which they can establish that the other party is in breach. However, the legislature has, for good reason, and of course under the driving force of European legislation, made certain victimisatory acts separately and independently actionable; and those are acts of discrimination or victimisation taken against those who have already adumbrated or made a claim by reference to race, sex or disability legislation, who are regarded as needing specific and separate careful treatment.[31]The conduct of which Mr Fenton complained (largely unsuccessfully, but in relation to the failure to provide industrial support successfully) would not have been actionable if it had simply related to a dispute between him and the Union as to, for example, the expenditure of Union funds, the payment or non-payment of membership subscriptions, the conditions at the college, or his entitlement to be or not be a member of a pension fund. What made the claim for victimisation actionable was that it was alleged to amount to action taken against someone who had brought a prior claim under the Sex Discrimination Act 1975 and/or the Equal Pay Act 1970 , i.e. his equal pay claim.[32]At the time of the hearing before the Tribunal in June 2002 Miss Machin, who appeared then as Counsel as she has appeared before us today, made the perfectly understandable concession that the protected act (which is necessary of course before there can be an allegation of victimisation) fell within one or more of the sub-paragraphs of section 4 of the 1975 Act. That was of course on the assumption that there had been already by then proceedings under the relevant Act, i.e. Mr Fenton's equal pay claim, which straightforwardly brought him within the provisions of section 4 (1) (a); but it could equally well have been said that he had given evidence or information in connection with such proceedings within 4 (1) (b), that he had otherwise done something by reference to the Act under section 4 (1) (c), or that he was alleging that the discriminator or any other person had committed an act which could amount or would amount to a contravention of the Act, within section 4 (1) (d).[33]In those circumstances, there was no issue before the Tribunal in June 2002 as to the existence of a protected act. Now, submits Miss Machin, the only protected act, however it was said to arise and under whichever sub-paragraph, namely by reference to the Applicant's equal pay claim, by reference to the Sex Discrimination Act 1975 and/or Equal Pay Act 1970 , had not only fallen away but had been found to be misconceived.[34]It is also fair to say that in his able arguments before us, Mr Fenton accepted as of now and, as he put it, with the benefit of hindsight, that his equal pay claim under the Equal Pay Act 1970 and/or Sex Discrimination Act 1975 and/or section 62 of the Pensions Act 1995 , was indeed misconceived.[35]But the issue before us is as to whether, on this appeal, we can be satisfied that section 4 (2) of the Act is made out. We should now flesh out some of the history to which we have briefly referred, but specifically by reference to the case that Miss Machin makes as to why in fact section 4 (2) is made out.[36]She submits that it is apparent that Mr Fenton is not to be regarded as an ordinary person so far as employment law is concerned, but has some considerable knowledge of it, by virtue of his capacity as a teacher, and that it is quite clear, from the way in which he argued the matter before Mr Doyle at the interlocutory application in the main proceedings, and indeed from all the documentation in the case, that his bringing of the claim under the Equal Pay Act 1970 and/or the Sex Discrimination Act 1975 , rather than a more straightforward claim in respect of the Pension Scheme, either contractually or under section 1 of the 1996 Act, was deliberately done in order to manufacture an Equal Pay Act 1970 claim; with the aim of bringing more pressure to bear on the Union, and with the aim of being able, as he subsequently speedily did, to assist his position by asserting that every step taken to deny or frustrate the existence of his claim was, because it was an Equal Pay Act 1970 claim, actionable as victimisation, thus putting additional pressure on the Union to resolve his case, and thus intended for a collateral purpose.[37]She points out that he brought the claim within a very short time of his rejoining the Union, and refers to the clause in the Union Rule Book which suggests, in the 2001 version at any rate, that he would not have been able to make his request for legal assistance any earlier than he did, because it is necessary to be a 'financial member' to qualify for legal assistance, and a financial member has to have been a member for 6 months, as he almost was when he put in his request on 11 July 2000. Thus, if one discounts the necessary wait in order to become qualified within the rules, effectively he rejoined the Union simply in order to make a claim against it, with the benefit of that very Union's legal assistance and industrial support, rather than remain in his old union making a claim if he had one.[38]She refers to a taped telephone conversation, of which we have seen a transcript provided by him, in which he is recorded making a false statement that he had been an uninterrupted member of the Union for 20 years, upon which she relies; and she also relies on that conversation as evidence that the Applicant was, as she puts it, mischief-making in the way in which he was pursuing his claim.[39]She further refers to the interlocutory application before Mr Doyle, to which we have referred, in which, whereas Mr Bradford disappeared from the scene, struck out, Mr Fenton managed to keep his claim alive by alleging that there was a 'gender connection', by reference to Mrs Sheila Bridge; and yet when eventually the matter came on for hearing, and he was on oath in the witness box, he forcefully conceded, not once but three times, that there was no 'gender connection.' It is clear, she submits, that had the same position been taken by him before Mr Doyle two years before, his equal pay claim would have been struck out at that stage, as was Mr Bradford's; so that effectively, she said, that the gender aspect was manufactured in order to keep the Equal Pay Act 1970 claim going while bringing pressure which he hoped would achieve results, by way of bringing parallel victimisation proceedings.[40]She therefore submits that when in the witness box he forcefully asserted that there was no gender connection, this was not an accident, not incompetence, not ignorance, but was in fact the best evidence that there had never been anything in the claim, and that he was finally having to face up to the consequences of having had a manufactured claim, and consequently indicating that he had been acting in bad faith throughout, and so as to disqualify him from his victimisation claim.[41]Mr Fenton has emphasised to us that at all times his primary aim has been to secure what he considers to be his entitlement by way of access to the Pension Scheme, and that so far as he was concerned the real issue at all times was whether he was or was not an employee in the relevant period prior to 1994.[42]He submits and accepts that he did put forward in the interlocutory application before Mr Doyle reference to Ms Sheila Bridge. On his case, it was put forward on this basis, namely that he concluded that he had such a good claim in respect of access to the Pension Scheme, and consequently that the Union had such a poor claim in response, that, if and when the matter were tried, he would be able to say that because there was no proper justification on the part of his employer union for resisting his claim, his exclusion must have been due to difference in sex and thus discrimination could be inferred, given the absence of any other proper explanation.[43]There is a great number of difficulties in relation to that argument. The first is of course that it is all quite unnecessary if the straightforward claim is made. The straightforward claim either is or is not a good claim, that is one either in contract or under section 1 of the 1996 Act, as to whether he is or is not entitled to membership of the Scheme. If he is entitled to membership of the Scheme, then the question as to whether there was or was not gender discrimination would not arise. It is difficult to see why at any stage he should have thought it necessary to bring such a convoluted claim when a straightforward one was available, right or wrong, to him.[44]Secondly, if in fact he was of the view at any rate that there might be some gender aspect to the claim which would justify what he asserted, in August 2001 before Mr Doyle in order to avoid the strike out, then he must have an answer, and yet has not been able to give one before us today, when pressed in the course of submissions, as to why he did not say so when cross-examined in the witness box before Mr Robinson. He takes no issue with the account set out by Mr Robinson in the Tribunal's decision in relation to March 2003, when he said not once but three times that there was clearly no relevance of gender. The matter was clearly not to do with gender. He did not at that stage say "well it might be to do with gender, because I cannot see any other explanation put forward" nor did he make any mention of Sheila Bridge.[45]Mr Fenton thought that there had been mention of Sheila Bridge in his witness statement in chief, so that it could be said that, if not by express reference, then by the presentation of his witness statement, there would at least have been some reference to Sheila Bridge, some putting in of facts relating to Sheila Bridge before the Tribunal.[46]We have been shown a draft unsigned statement which was served on the Appellant Union and there does not appear, on anyone's quick perusal of it, to be any reference to Sheila Bridge in that witness statement, although clearly there may possibly have been some later amendment to it not incorporated in the document we see. But even if there had been such incorporation, what is central is the fact that when cross-examined he abjured it, by his lack of reference to it, and of course what is so particularly significant is that having made that statement three times in the witness box his case under the Sex Discrimination Act 1975 and Equal Pay Act 1970 was then expressly abandoned . It is not that anyone attempted to say "well, that may be what he said in the witness box, but it does not accord with what he said in his witness statement, and we invite you, Tribunal, to prefer the one to the other, because perhaps he was caught unawares in the cross-examination" or to put forward some other explanation of that kind; the case was simply abandoned.[47]Mr Fenton has sought further or in the alternative to rely on the existence of solicitors' advice as showing that his claim was not pursued in bad faith. He has shown us a letter which was sent by his solicitors whom he instructed at the time, insisting that, as he was suing the Union, he should have a completely independent firm and by whom, as we understand it, he is now employed, in a letter dated 23 March 2001.[48]That letter was sent to the Union, effectively by way of a report to the Union, from the solicitors Sinclair Abson Smith who were acting for him at entirely arms length, and it records that the Applicant was requesting:
"…financial assistance in respect of four separate Employment Tribunal claims, namely: - 1. Constructive dismissal 2. Equal access to pension scheme 3. Unjustified discipline 4. Victimisation/sex discrimination."
[49]Of course, we now know that the constructive dismissal and unjustified discipline claims were dismissed, the equal access to pension scheme, being the equal pay claim, was abandoned and the victimisation claim succeeded only in the limited extent to which we have referred. The letter continued:
"We have discussed all these four separate applications with our client, and on the basis of what he has told us and on the basis that we believe that he will make a powerful and believable witness, we are able to say to the Trade Union that we consider that his prospects of success in each of these applications is above 50%. You will clearly appreciate that we are not able to go into our decision in any more detail."
[50]In the light of that, the Union continued to supply legal assistance, although they did not supply industrial support, that is, general Union back up over and above the instruction and payment of solicitors.[51]Mr Fenton points to that letter as showing that he had advice from his solicitors that he had a better than 50% chance of success with his equal pay claim, and consequently that he cannot have been in bad faith.[52]He has also pointed to a letter which was sent by those same solicitors to the Union on 17 July 2003, addressing the fact that the equal pay claim had been found by the Tribunal to be misconceived. In paragraph 3 of the letter, which is spread over some three pages, the solicitors assert the strength of the case, as they saw it, on what might be called the employment status aspect, as to his right to be joined into the Pension Scheme prior to 1994. But there is no mention there of any view by the solicitors, or any advice given by the solicitors, in relation to the central point which had led to the abandonment of the equal pay claim, namely the Applicant's concession that there was no gender connection at all to the pension claim he was making.[53]Those two letters, albeit not very strong, might have led to the availability of an argument of reliance on solicitors' advice. It would need to be accompanied by a waiver of privilege, which Mr Fenton said he was willing to give, in order to see what advice the solicitors in fact gave as to whether there was any gender connection to the equal pay claims.[54]But in reply Miss Machin produced a letter which appears to us to render any reliance on solicitors' advice unsupportable. It is a letter dated 13 March 2003, sent by the same firm, SAS lawyers, to Mr Jones at the Union, by way of a report of the hearing before Mr Robinson; and the relevant part reads as follows:
"Mr Fenton put the equal value claim on two fronts as follows: 1. By denying access to the pension the Respondent was in breach of section 62 of the Pensions Act. 2. By denying him access to the Pension Scheme the Respondent was in breach of the relevant provisions of the Sex Discrimination Act."
Pausing there, by way of interpolation, we do not see how there can be said to be any difference between those two characterisations of his case. They both depend upon a gender discrimination impact. The letter continues:
"The Tribunal Chairman at the beginning of the hearing took a decision that he was not able to deal with any claim under the Pension Act."
We would read that as saying that there was no separate claim under the Pension Act 1995 , which effectively only amends the Equal Pay Act 1970 and/or the Sex Discrimination Act 1975 . "The claim under the Pension Act 1995 " [opines SAS]" was a stronger claim than under the Sex Discrimination Act." As we have indicated, we do not understand what is meant by that, but it does not matter in the circumstances. Then the crucial paragraph:
"In order to succeed under the Sex Discrimination Act Mr Fenton needed to show that the disparity in treatment was based on sex. His instructions to me throughout the course of these proceedings were exactly that, i.e. that the disparity in treatment was as a result of sex, in that he as a male was denied access to the Pension Scheme, whereas Sheila Bridge as a female employed on like work was allowed access to the Pension Scheme. Under cross-examination Mr Fenton was asked whether he believed the difference in treatment was based on sex. He indicated that he believed it was not. This single answer was fatal to the Sex Discrimination Act claim."
[55]Mr Fenton was asked by us whether he wanted to say anything further in response to Miss Machin by reference to that letter, and he said there was nothing he wished to add.[56]It appears to us that that letter is fatal to any reliance on solicitors' advice, because the solicitors themselves are there saying that they had relied at all times on Mr Fenton's assertion that the disparity in treatment was based on sex. One might ask the question as to why they did not probe him in the way that he was plainly probed in cross-examination; but they did not, and they relied on him, rather than the other way round.[57]That basic assertion which, as the solicitors recognised, was essential for the success or indeed existence of the claim he had been asserting to them, he expressly asserted, as they themselves report, in evidence, not to be the case. Thus, as they themselves said, the non-existence of that disparity in treatment based on sex, which he himself admitted, was fatal to his equal pay claim.[58]That is the nature of the evidence and the submissions before us. It is of course the case that the same Tribunal heard and presided over the withdrawal of the equal pay claim, and awarded costs, as had heard and decided the victimisation claim.[59]It is also the case that the issue that it had to resolve at the latter hearing was one of costs in which it was required for the Tribunal to adopt the wording of the relevant rule such as to justify it in ordering costs. It is of course not frequent that costs orders are made at the Employment Tribunal level, and it is plain that the Tribunal regarded the conduct of Mr Fenton very seriously; and, indeed it is quite plain that they were right to do from that letter of SAS.[60]It made an order against him, notwithstanding that he had been represented by solicitors and indeed leading Counsel.[61]But that said, just because the Tribunal's decision was a different one, in relation to whether he should pay costs, means that they have reached no overt conclusion as to whether, if the issue is one within section 4 (2) of the Act, as it must be, it would have found that the conduct was not only misconceived, but also in bad faith. We are clear that it has not done so, and that there is no res judicata . Essentially, Miss Machin did not push that part of her submission very hard.[62]The way in which she primarily put her case is that, in the light of what we have summarised, and in the light of the Tribunal's own findings, it is inevitable that that Tribunal would reach the conclusion on the facts that we have recited that Mr Fenton was bringing his claim in bad faith, that he knew that the allegation that there was a breach of the Equal Pay Act 1970 and/or Sex Discrimination Act 1975 was false and not made in good faith.[63]Before we reach a conclusion on that, we should mention Mr Fenton's fallback argument. Recognising the difficulty that he was likely to be in, in respect of this protected act, he sought to argue in written submissions, which he ably put forward to us before the hearing, as he was perfectly entitled to do in an addendum to his Respondent's Notice, given the appearance on the scene since his original Respondent's Notice of this new appeal, that if the protected act on which he had relied at the Employment Tribunal fell away there were other protected acts on which he would have relied, and still could rely. He put it in the following terms in his Addendum document: 1.2.8 "These Protected Acts, other than the issuing of proceedings, were identified in Amendments as follows:(a) Encouraging and assisting other members and former colleagues to prosecute internal grievances and issue related proceedings…(b) Making allegations as to the employer's conduct in good faith in relation to the above, including serious allegations relating to the conduct of the General Secretary and Chair of Trustees…(c) The compounding of victimisation arising out of these acts by alleging that the Lancashire Region of GMB had supported GMB nationally by defending claims made under or by reference to the Acts in exactly the same terms as the employer defended the equal access claim…"[64]On analysis in the course of very full submissions made by Mr Fenton today, it became apparent, and indeed he conceded, that, with one possible exception, all those ways of putting the case were dependent upon there being a protected act relating to the Equal Pay Act 1970 or Sex Discrimination Act 1975 .[65]The Tribunal relied on the simple act of the bringing of the proceedings under section 4 (1) (a), which was all that was needed; but there were available, as indeed was conceded below, the possibility of the other sub-paragraphs in relation to acts short of proceedings, and the kind of matters which were referred to by Mr Fenton in his Addendum, making allegations, prosecuting internal grievances and such like, given that they all related to the bringing of the claim in respect of denial of access to the Pension Scheme, were none of them any different from the claim itself. He accepted that if the protected act relied upon in the Employment Tribunal were not good, none of these other alleged protected acts would assist him.[66]The one possible area which, although he himself, when conceding the rest of it, also conceded the arguability of this point, we sought to resuscitate on his behalf in the course of submissions, related to the fact that he from time to time assisted Mr Bradford in relation to the bringing of his identical claim. We conclude that in fact this also is no different from his main case. When assisting Mr Bradford he was in fact assisting himself, because they were both bringing the same claims. We are satisfied that there is no separate protected act to be seen in respect of his assistance of Mr Bradford than in relation to the pursuance of his own case.[67]And so we come to the question as to whether that protected act upon which he relied, and which was concluded by the Employment Tribunal to be sufficient to found the victimisation claim, can be shown to fall foul of section 4 (2), in the sense that, if it were sent back to the Employment Tribunal, the Employment Tribunal would be bound to conclude that the assertion of that claim was false and not in good faith.[68]The case against him is extremely strong. Nevertheless, we conclude that it would not be right for an appellate Tribunal to speculate as to what an Employment Tribunal would do – albeit that the speculation in this case is based on very strong evidence, as we have indicated – where the finding is or would be one of bad faith.[69]We conclude that it would be right here for Mr Fenton to have the opportunity of persuading a Tribunal (we put it that way, although we know of course that the onus of proof will be on the Union, by reference to the evidential burden which he will have, given the strength of the case against him) that when formulating the equal pay claim, and pursuing it, and using it to surmount the hurdle of the strike-out application, and then, as Miss Machin has put it, "piggy-backing a victimisation claim on it", he was not acting in bad faith, that is, using the proceedings for the purpose of bringing pressure to bear on his employers, his union, to settle his straightforward claim, right or wrong, for equal access to the Pension Fund prior to 1994.[70]We are clear that it should be the same Tribunal who heard the June 2002 and March 2003 hearings which should decide this short question (I say short question, they will want to hear evidence but, given their considerable knowledge of the background, it need not take too long to resolve), the onus being upon the Union, as to whether in bringing the equal pay claim, which he subsequently abandoned, Mr Fenton was pursuing an allegation that was false and not made in good faith; the allegation of course not being simply that he was entitled to access to the Pension Scheme, but that the refusal of access to the Pension Scheme was discriminatory on gender grounds.[71]In those circumstances we allow the appeal to the extent of remitting the issue under section 4 (2) to the Employment Tribunal to consider.[72]That leaves outstanding the original appeal by the Union and of course the cross-appeal by Mr Fenton as to the quantum of the award made. That appeal and cross-appeal must be adjourned until after the outcome of the Employment Tribunal decision. We are conscious of the fact that in that way we leave loose ends untied, but there are two reasons that we do that. One is because that appeal and cross-appeal may never arise for consideration if the Union is successful on the section 4 (2) issue before the Employment Tribunal. The second is that, given the amount of time that has been taken on dealing with the central issue before us (it is now 4.30pm), there would be no chance of our dealing with the other issues today in any event. And so that is the order we make.