THOMAS WYLIE MCCULLOCH v CHIEF CONSTABLE DUMFRIES & GALLOWAY CONSTABULARY [2005] UKEAT 0891_04_2109

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0891_04_2109Case No Appeal No. UKEAT/0891/04/DA& UKEAT/0005/05Venue 52 MELVILLE STREET, EDINBURGH EH3 7HF
Between
THOMAS WYLIE MCCULLOCHAPPELLANTCHIEF CONSTABLE DUMFRIES & GALLOWAY CONSTABULARYRESPONDENT
Before
Lady SmithDate 21 September 2005
[1]APPEARANCES For the Appellant Mr S C Miller, Solicitor Of- Messrs Macroberts Solicitors 152 Bath Street GLASGOW G2 4TB For the Respondent Ms A Jones, Solicitor Of- Messrs Maclay Murray & Spens Solicitors 3 Glenfinlas Street EDINBURGH EH3 6AQ SUMMARY PRACTICE AND PROCEDURE Review CONTRACT OF EMPLOYMENT Written Particulars The claimant sought to have determined certain terms of his contract of employment, under s.11 of the Employment Rights Act 1996, one of which concerned his entitlement to a special allowance which his employer, the Chief Constable, had been authorized to award by the Scottish Executive. His employer had not in fact, for a stated period, awarded the allowance to the claimant. The Employment Tribunal had determined that they had no jurisdiction to determine the matter and refused a subsequent application for review. The Employment Appeal Tribunal upheld the Employment Tribunal's refusal in respect that the application had no reasonable prospects of success in circumstances where the terms argued for had not been agreed between parties as a term of the contract of employment. THE HONOURABLE LADY SMITH: Preliminaries This case concerns a claim for determination of particulars and main terms of employment, under s.11(1) of the Employment Rights Act 1996 that was made by the Claimant before the Employment Tribunal. Introduction[2]This is an appeal by the Claimant in those proceedings against a Decision of an Employment Tribunal, sitting at Glasgow, Chairman Mr M W MacMillan, registered with Extended Reasons on 15 September 2004. The Claimant was represented there and here by Mr Miller, solicitor, and the Respondent there and here by Ms Jones, solicitor.[3]The Claimant sought a review of the decision of the Employment Tribunal of 6 April 2004, founding on Rule 13(1)(e) of the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001('the 2001 rules'), which were the rules then in force. The decision of 6 April followed a hearing for a preliminary determination on the question of whether the Tribunal had jurisdiction to consider the Claimant's complaint. In a letter dated 10 May 2004, attached to his application for a review, he explained that the basis on which review was sought was that the Tribunal had made a determination that went beyond the question of jurisdiction.[4]The hearing on 15 September was a hearing under Rule 13(5) to determine whether or not the application for review should proceed to a hearing or whether it should be refused on the basis that it had no reasonable prospects of success. It was, accordingly, a hearing at what is generally referred to as the 'sift' stage of the review procedure.[5]The Respondent contended that the application should be refused. The issues[6]The essential issue between the parties could only, given the terms of the rules, be the question of whether or not it could be said that the review application had no reasonable prospects of success. If it could not, then it would have required to proceed to a hearing under Rule 13(6) of the 2001 Rules. At this stage, I observe that in a letter dated 8 June 2004, the secretary to the Employment Tribunal indicated that the hearing would be heard in accordance with Rule 13(6) which must, in the circumstances, have been incorrect. In the event, nothing turns on that error since parties were agreed that the decision registered on 15 September followed a hearing which was solely for the purpose of a Rule 13(5) determination. The judgment[7]The Employment Tribunal decided, following a hearing, that the request for a review of the decision of 6 April should be refused. The appeal[8]The Claimant appeals against that decision. EAT Directions[9]Directions sending this appeal to a full hearing were given in Chambers by Lord Johnston. The legislation[10]The relevant legislative provisions are, firstly, Rule 13(1)(e), (5) and (7) of the 2001 rules which provide:- "13 Review of the tribunal's decision (1) Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that- (e) the interests of justice require such a review. (5) An application for the purposes of paragraph (1) may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success. (7) On reviewing its decision a tribunal may confirm the decision, or vary or revoke the decision; and if it revokes the decision, the tribunal shall order a re-hearing before either the same or a differently constituted tribunal." secondly, rule 15(8) of the 2001 rules, the provisions of which include:
"15 Miscellaneous powers (8) Any act required or authorised by these rules to be done by a Tribunal may be done by a chairman except - .." there then follows a list of acts not so authorised which is not relevant for present purposes, and thirdly, sections 1, 4 and 11 of the Employment Rights Act 1996, the provisions of which include: "1 (1) Where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment …… ………………….. (4) The statement shall also contain particulars, as at a specified date not more than seven days before the statement (or the instalment containing them) is given, of- (a) the scale or rate of remuneration or the method of calculating remuneration………………… (k) where the employee is required to work outside the United Kingdom for a period of more than one month- the period for which he is to work outside the United Kingdom……………. ………………………… (iii) any additional remuneration payable to him, and any benefits to be provided to or in respect of him, by reason of his being required to work outside the United Kingdom, and 4 (1) If, after the material date, there is a change in any of the matters particulars of which are required by sections 1 to 3 to be included or referred to in a statement under section 1, the employer shall give to the employee a written statement containing particulars of the change……………….. 11 (1) Where an employer does not give an employee a statement as required by section 1, 4 or 8 (either because he gives him no statement or because the statement he gives does not comply with what is required), the employee may require a reference to be made to an [employment tribunal] to determine what particulars ought to have been included or referred, to in a statement so as to comply with the requirements of the section concerned."
Employment Tribunal directions[11]The Tribunal directed itself by reference to the relevant legislative provisions and, at the hearing on 6 April 2004, had also directed itself by reference to the case of Eagland v BT [1992] IRLR 323. The facts[12]The Respondent is the Chief Constable of Dumfries & Galloway Constabulary and the Claimant was a Detective Chief Superintendent there until the end of 2002.[13]The factual background to the dispute between the parties is set out in pages 3 and 4 of the Summary Reasons attached to the Tribunal's Decision following the hearing of 6 April. Put shortly, they are that the Claimant began his service in the police force in 1971, was appointed Detective Chief Superintendent in 1998 and, at the same time, became the senior investigating officer for the Lockerbie aircraft explosion criminal investigation. He was responsible for the policing of the Scottish court set up at Kamp van Zeist for the trial of those accused of planting the bomb on the airliner that exploded over the town of Lockerbie and, as a result, spent much time working abroad until the trial was completed.[14]The Claimant had asserted and continues to assert that he ought to have been paid an allowance under regulation 63 of the Police (Scotland) Regulations from the time that Scottish Executive approval for the payment of such an allowance was made, in August 1999. He did not receive any such allowance until January 2001 when the Respondent considered that the Claimant ought to begin receiving it. The Respondent's position was that he was not entitled to receive the allowance prior to then. It is evident from the material before me that the awarding of such an allowance is something which lay within the discretion of the Respondent once the approval of the Scottish Executive to the making of such payments had been obtained, as confirmed by Ms Jones in the course of the hearing and not disputed by Mr Miller.[15]There is an outstanding dispute between the parties regarding the question of whether or not a regulation 63 allowance ought to have been granted to the Claimant for the period between August 1999 and January 2001. Claimant's case[16]To understand the Claimant's approach at the review hearing, it is necessary to consider the case presented on his behalf to the Tribunal at the hearing on 6 April. That hearing was a preliminary hearing, set by Ms Eccles, Chairman, on 15 September 2003, to determine issues including that of whether or not the Tribunal had jurisdiction to consider the Claimant's complaint in terms of section 11 of the Employment Rights Act 1996. No doubt the terms of the originating application had influenced her in deciding that a preliminary hearing was required since, in it, the Claimant details his complaint as including: "…..the Respondent's then Chief Constable had authority from the Secretary of State to pay an allowance under Regulation 63 to officers such as the Applicant, serving at Kamp van Zeist in the Netherlands. For the period referred to, the Applicant had an entitlement to receive payment of the allowance." and the response to that, in the Respondent's notice of appearance, was that the Tribunal had no jurisdiction to make the declaration sought. It was against that background that, at the preliminary hearing, the Claimant sought to advance the case which is rehearsed in detail at pages 2 to 3 of the Summary Reasons and was to the effect that the Claimant's statement of employment particulars ought to have included matters relating to changes in his conditions of employment in connection with his working in the Netherlands including that he ought to have been entitled to a Regulation 63 allowance as part of his remuneration.[17]The Employment Tribunal heard evidence and considered the terms of a statement of agreed facts and found that since it was 'absolutely clear' that there was no agreement to the effect that the Claimant was entitled to be paid an allowance under regulation 63 for the period sought, it had no jurisdiction in respect of that matter. Separately, they found that since the Claimant had been required to work outside the United Kingdom for a period in excess of one month, it had jurisdiction in respect of that matter, under s.1(4)(k)(i).[18]The Claimant sought a review under rule 13(1)(e) by letter dated 10 May 2004. It is evident from that letter and from the approach adopted on his behalf at the review hearing, that he regarded the decision of the Tribunal to be to the effect that he had no entitlement to be paid the disputed regulation 63 allowance and, in so doing, extending beyond the determination of the question before it, namely that of whether or not it had jurisdiction to entertain the claim.[19]At the hearing on 1 September 2004, the Claimant appears to have submitted that, at the earlier hearing, the Tribunal had gone beyond the issues that were strictly necessary for the determination of the jurisdiction issue, that had the Claimant appreciated that that was going to occur he would have led further evidence and that in those circumstances, the interests of justice required a review. Before me, it was submitted on behalf of the Claimant that, it being clear that the hearing on 1 September was for the purposes of Rule 13(5), the only question to be addressed was that of whether the application for review had any reasonable prospects of success. That was, it was submitted, a less exacting standard than that provided for in Rule 13(1)(e). At no point had the Tribunal focussed on that test although it had considered the question of the interests of justice. Whilst it was accepted that a Tribunal considering the reasonable prospects issue may well reach a view as to whether or not it will be in the interests of justice to grant the review, it was submitted that where the 'reasonable prospects' had not been expressly referred to, its reasoning should be afforded greater scrutiny although that submission was not developed so as to indicate where such greater scrutiny might lead. He did not actually submit that the Tribunal had erred in law and applied the wrong test. In particular, he did not submit that the Tribunal's decision at the review hearing was a perverse one.[20]In respect of the concept of reasonable prospects of success, Mr Miller referred to the opinion of Lord Hodge in the petition of Land Securities Group PLC for judicial review (unrepd 19 August 2005) where, at paragraph 26, he states:
"Lawyers may have different views as to the meaning of the phrase "reasonable prospects of success"
. I interpret the phrase as meaning that the chances of success are in excess of fifty per cent or at worst are somewhere in a range not far from fifty per cent. In my opinion the phrase "no reasonable prospects of success" has a stronger meaning than merely that the prospects are not reasonable in the sense which I have described. To me it means that there is a considerably lower chance of success ranging from an assessment that a case is bound to fail to a one in four or, at most, a one in three chance of success." Mr Miller disavowed, however, any attempt to suggest that Tribunals considering review applications at sift stage ought to assess their prospects of success in percentage terms. He also referred to the case of James Bradley v Freeport plc EATS/0019/03 where a Tribunal chairman, having considered the papers in chambers, refused to grant a review. That was a case in which no reasons were given beyond the Tribunal Secretariat issuing a letter stating that the Tribunal Chairman was not satisfied that a review was required. On appeal, the Employment Appeal Tribunal, not surprisingly, remitted the case back to the Tribunal chairman to give reasons as to why she considered that there were no reasonable prospects of success. Mr Miller relied on the case as support for a submission that when refusing an application for review under Rule 13(5), a Tribunal must give reasons for doing so.[21]Separately, in a chapter of his submissions that involved a consideration of the April Tribunal decision, Mr Miller explained that the Claimant's substantive case was that the Respondent ought to have included him in the category of persons to whom the Regulation 63 payment was made. He said that he accepted that an employee cannot, under the statutory provisions regarding entitlement to a written statement of the terms of employment, seek a determination of conditions that he ought to have enjoyed. An employee could, however, he submitted, seek a determination of conditions which ought to have been in his contract because he was 'part of a qualifying group'. He cited no authority in support of that proposition. He gave as an example a case where an employee's trade union has agreed an increase in hourly rate; in those circumstances, the employee would, he said, be entitled to a statement of terms of employment which included that hourly rate. It seemed that he regarded the present case as being comparable. Other submissions were made in connection with the April decision which really involved something of a rehearsal of the Claimant's substantive case and it was submitted that the Tribunal had, in its decision, made a determination that the Claimant was not entitled to the allowance. In support of that submission, reference was made to a passage in the September decision where it is commented that two areas of the April decision could have been better drafted and in one part it was at fault.[22]It was ultimately accepted by Mr Miller that, in the present appeal, the matter was at large for the Employment Appeal Tribunal and if it were to read the reasoning as indicating that the Tribunal's view when refusing the application for review was that it had no reasonable prospects of success then the appeal would be bound to fail. Respondent's case[23]Ms Jones, on behalf of the Respondent, began with some highly pertinent observations. She submitted that, at the heart of the dispute between the parties lay a fundamental misunderstanding on the part of the Claimant. He failed to distinguish between entitlement as a matter of fact:
'did he receive the payment?' and entitlement as a matter of law: 'was he legally entitled to the payment?'
The Tribunal had decided, correctly, that they had no jurisdiction to determine the question of whether, as a matter of law, the Claimant was entitled to the payment. It was not, contrary to the example cited by Mr Miller, a case of their being asked to decide whether he was in a category of persons to whom the Respondent had agreed to make the payment. There was no question of there being, in this case, any relevant agreement. That was the fundamental difficulty with the Claimant's approach. The present case was on all fours with the case of Eagland , as the Tribunal had recognised.[24]Ms Jones submitted that it was clear that the Tribunal had not considered the question of the Claimant's entitlement to payment of the allowance sought in the legal sense and even if they had done so, that would not alter the fact that it had no jurisdiction to consider the disputed issue regarding it.[25]Regarding the hearing on the review application in September, Ms Jones confirmed that it was accepted by the Respondents that that was a hearing under Rule 13(5) at which the test was whether it could be said that the application had no reasonable prospects of success. It was clear that the Tribunal took the view that the Claimant's position remained that he was looking for a declaration of an improvement in his employment terms of the type that Eagland made it clear could not be imposed by an Employment Tribunal. The Tribunal plainly were of the view that, in those circumstances, the review application had no reasonable prospects of success. The legal principles[26]The principal legal principle that falls to be applied is that when considering the review application for the purposes of Rule 13(5), what the Tribunal required to do was ask itself whether it could be said that the application had no reasonable prospects of success. Unless that question could be answered in the affirmative, it was bound to proceed to a review hearing which, given the provisions of Rules 13(6) and 15(8) of the 2001 Rules, would have required to take place before a Tribunal appointed by either the President or a Regional Chairman, which the Tribunal sitting on 1 September 2004 was not.[27]Whilst it is obviously desirable and, for the sake of clarity, preferable that a Tribunal considering the above question sets out in express terms that it is doing so, there is no rule that requires that. Clearly, reasons for any refusal must be given and it may be evident from the reasons themselves that the correct question has been addressed and answered. In considering an application for review at 'sift' stage, the Tribunal cannot ignore the merits of the case since it is fundamental to the exercise that it has to perform that it reach a view as to the strength or otherwise of the application brought. There may be cases where the reason why the Tribunal considers that there are no reasonable prospects of success is that it is plain, in an application made on the 'interests of justice' ground, that on no view could the interests of justice require such a review. In such a case, if a Tribunal explains that that is its view without spelling out that it therefore considers that the application has no reasonable prospects of success, it is obviously to be inferred that it is also determining that the application has no reasonable prospect of success.[28]In this case, it is quite clear from the content of the Tribunal reasons appended to its decision of 15 September 2004 that the view reached was that the application had no reasonable prospects of success. Certainly, at one point, the Tribunal frankly accepts that the wording of the reasons appended to the April decision could have been better drafted but I consider that it is correct when it asserts that if those reasons are read in context, that is, by reading them in the context of the reasons as a whole, it is clear beyond doubt that there is no determination of the issue of entitlement to the allowance. That much is plain from the paragraph that begins at line 9 of page 8 of those reasons which reads as follows:
"What the applicant here is seeking is a change in the level of remuneration in his favour. It was absolutely clear that there was no agreement to this effect. The applicant's position is that there ought to have been. That may or may not be so but for the reasons we have given above, we do not believe that this is an issue which can be explored before the Tribunal, because we have no equitable jurisdiction to do so."
[29]Separately, though not strictly relevant to the issue that I have to determine, since it was not submitted that the Tribunal's refusal to allow the review application to go forward was a perverse one, I would make some observations regarding the issue that lies at the heart of the dispute between the parties. It seems to me that Mr Miller's approach of comparing the Claimant's case with that of an employee who can rely on the fact that his trade union has agreed a particular improvement in the terms on which an employer affords employment to its members, is wrong. In such a case, the employee is able to rely on an agreed term, namely that which has been agreed by the employer on the one hand and by the union, on his behalf, on the other hand. He would then, under reference to provisions of the Employment Rights Act 1996 to which we have referred, be able to seek from the Employment Tribunal a determination that his hourly rate of pay was as agreed between his employer and his union. The circumstances of the present case are, however, evidently different. There had been no agreement between or on behalf of the parties that the Claimant was entitled to the Regulation 63 allowance. Mr Miller, in the course of his submissions, accepted that it was not open to an employee to seek, before an Employment Tribunal, a determination of conditions of employment that he did not but ought to have enjoyed. It would have been difficult for him to submit otherwise, given the relevant statutory terms and the decision in the case of Eagland where the Court of Appeal held that the task of the Tribunal was to find out whether the terms of a written statement of particulars of employment accurately reflect the position as it is, not as it might have been, observing that, even in the case of mandatory terms of employment (mandatory in the sense of there being statutory entitlement to them, such as provision for periods of notice that relate to the length of service) the Tribunal have no power to determine that they form part of the parties' contract if they have not in fact been agreed between them. As

Lord Justice Leggatt put it, at paragraph 25:

"...I too am unable to envisage circumstances in which it might become appropriate for an Industrial Tribunal to invent a term. I use the word ' invent' …..in the sense of determining either what term should have been agreed or what term would have been reasonable."
In these circumstances, the Tribunal's approach to this case is entirely understandable. Conclusion[30]The arguments of the Claimant fall, accordingly, to be rejected and the appeal is dismissed.