MR D ROGERS v DOROTHY BARLEY SCHOOL [2012] UKEAT 0013_12_1403

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2012] UKEAT 0013_12_1403Case No Appeal No. UKEAT/0013/12
Between
MR D ROGERSAPPELLANTDOROTHY BARLEY SCHOOLRESPONDENT
Before
Mr Recorder LubaDate 14 March 2012
[1]APPEARANCES For the Appellant MR D ROGERS (The Appellant in Person) For the Respondent MRS S STANZELL (of Counsel) Instructed by: London Borough of Barking & Dagenham Legal Practice Civic Centre 1st Floor Annex Dagenham RM10 7BN SUMMARY UNLAWFUL DEDUCTION FROM WAGES JURISDICTIONAL POINTS School caretaker living in caretaker's house presented (by mistake or administrative error) with water rates bill normally paid by the school. Complaint to Employment Tribunal service. Employment Tribunal Judge says no jurisdiction because(1) if it is a "deduction of pay" complaint, no pay actually deducted (school paid the bill) and(2) if it is a "breach of contract" claim, he is still employed by the school (see arts 3 and 4 of Employment Tribunals (Extension of Jurisdiction) Order 1994 ). Appellant in person simply asserting "there was a breach of contract". Appeal dismissed. ETJ clearly right that the ET service had no jurisdiction and the appeal was misconceived. Application for costs refused. No warning by Respondent that it would apply for costs. No schedule of costs supplied in advance of hearing. Extent to which school's conduct (in directing bill to him) had brought the case on themselves. MR RECORDER LUBA QC Introduction This is an appeal by Mr David Rogers arising from his claim brought to the Employment Tribunals Service against his employer, the Dorothy Barley School, which is a school in Dagenham, east London. Mr Rogers is the long-serving caretaker at the school, and as a benefit of his employment he occupies the school caretaker's house. What appears to have occurred, putting it very briefly, is that there was a change in the water billing arrangements for the supply of water to the school caretaker's house and perhaps also to other parts of the school premises. In the result, water meters were installed to monitor the amount of water being supplied, and bills were then generated based on the water consumed. Mr Rogers' case is that his contract provided that the water services would be supplied to the caretaker's house at the expense of the employer and not at the expense of the employee. He therefore asserts that it is quite wrong that any bill for water supply came to be presented to him. He was presented with such a bill and was convinced that he should not have been. That grievance he set out in a claim to the Employment Tribunals Service. As is clear from its content, and as Mr Rogers has outlined to me in the course of his submissions today, the thrust of his complaint was that his employer was acting in breach of his contract by causing water bills to be presented to him for payment and/or alternatively giving him the instruction that he must pay them. Procedural background[2]The claim that he had made was placed before a Judge of the Employment Tribunal, Employment Judge Prichard. By a notification given on 15 September 2011 Employment Judge Prichard rejected the claim. He did so giving these reasons:
"I am returning your claim, because you say you have been presented with a [water] rates bill but not that the billed amount has been deducted from your pay. This appears to be a breach of contract claim and as you are still employed by the Respondent the Tribunal has no jurisdiction to hear this claim."
[3]That was a decision promulgated in accordance with Employment Tribunals (Constitution and Rules of Procedure) Regulations Schedule 1, rule 3(5). The Employment Judge was deciding that the Employment Tribunals Service had no jurisdiction in respect of Mr Rogers' claim. First, in so far as it might be understood that the claim was for unauthorised deduction of pay, in fact there had been no deduction of pay (because the school actually paid the water bills), so on that score the Tribunal had no jurisdiction. Secondly, or alternatively, in so far as the assertion was one of breach of contract, the jurisdiction of the Employment Tribunal is limited by law. The statutory instrument conferring on the Employment Tribunal, rather than the County Court, jurisdiction to hear contract claims is the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 . That does provide that some proceedings can be brought before an Employment Tribunal in respect of breach of contract, but as Articles 3 and 4 of that order make quite clear the Employment Tribunal only has jurisdiction in relation to contract claims arising in or outstanding on the termination of the employment of the employee. Mr Rogers' employment has not been terminated. In those circumstances, and for those reasons, the Employment Tribunal Judge rejected the claim. The appeal[4]Mr Rogers exercised his right of appeal on a point of law to this Employment Appeal Tribunal. He has been invited through the procedures of the Employment Appeal Tribunal to identify the alleged error of law. He has acted in person, and has sought to persuade me that there is an error of law here by his repeated, insistent, but nevertheless courteous, assertion that there has been a breach of contract. As I sought to explain to him in exchanges, this Employment Appeal Tribunal is not concerned with whether or not there was a contract of employment breach but whether the Employment Tribunals Service has jurisdiction to entertain it. To put it another way, Mr Rogers may have had a perfectly good grievance about breach of contract and sought to have it aired in, for example, the Magistrates' Court. A Magistrate would have decided that the Magistrates' Court has no jurisdiction to hear such cases, and no appeal from the Magistrates' Court could have succeeded on that point. The Employment Tribunal had no more jurisdiction to deal with this case than a Magistrates' Court would have had.[5]Before me, Mr Rogers seeks to appeal from an Employment Tribunal, which has no jurisdiction, to an Employment Appeal Tribunal, which likewise has no jurisdiction to entertain his concerns. He is seeking to activate a wholly inapplicable procedure. He needs to take his grievance, if grievance it be, to the right place. That may or may not be the regulatory authority that deals with water supply. It may or may not be the local authority under its complaints procedure or the local government ombudsman. It may or may not be the County Court. The one place where it is plain as a pikestaff he cannot advocate his present grievance or concern as to breach of contract is in the Employment Tribunal. It therefore inevitably follows that I must dismiss his appeal.[6]Mr Rogers has put not a little emotional energy into utilising this procedure. It is, as he was told by the Employment Tribunal Judge as long ago as September 2011, precisely the wrong procedure. He tells me that certain unidentified people have given him the advice that the Employment Tribunal Judge was wrong. Such advice was mistaken. Conclusion[7]In these circumstances, as I say, this appeal must be dismissed. It is most unsatisfactory for any judicial Tribunal to leave unresolved the underlying differences between the parties, but sadly when questions of jurisdiction arise that is the not infrequent outcome. All I can say of comfort to Mr Rogers is that one can readily understand the source of his unhappiness in relation to the water bill matter. What he must do is get proper professional advice about where, if anywhere, that matter should properly be aired. As I have sought to explain in this Judgment, it cannot be aired presently in the Employment Tribunal or in this Employment Appeal Tribunal. Application for costs[8]The Respondent, the employing school, asks me to make an order for costs to be paid by Mr Rogers. I do have a jurisdiction to make such a costs order under rule 34A(1) of the Employment Appeal Tribunal Rules . Amongst the grounds upon which such a costs order can be made are the grounds that the appeal was misconceived. Mrs Stanzell, for the Respondent, says that this is a plain case of a misconceived appeal, and indeed that is a fair reading of my Judgment. There is no doubt therefore that I do have jurisdiction to make an order for costs. Rule 34A(1) provides this Tribunal with a discretion in that respect. This ensures that a person who brings a misconceived appeal should only be penalised in costs where that is the appropriate response.[9]There is a number of features of this application for costs that lead me to the conclusion that it would not be right to order Mr Rogers to pay costs. The first is that the Respondent employer has known for many months that Mr Rogers is acting in person and is simply not grasping the jurisdictional question that his appeal raises, yet there is no letter or other correspondence or intimation to him warning him that if he proceeds, an application for costs will be made. Secondly, no recent notice of the application for costs has been given at all, even though it must have been apparent within the last days and weeks that the appeal would be pressed to a full hearing and that costs might be sought; as I say, no intimation whatever was given. Thirdly, the applicant for costs, the Respondent, has not given any notice to Mr Rogers of the extent of the costs it would seek, so he has had no opportunity to assess or contest the amount that is proposed. Finally, I take into account the underlying difficulty that has given rise to these proceedings in the first place. It is conceded by the school that the water bills that were presented in the summer of last year were presented in some form or another to Mr Rogers for payment when they should not have been. The employer, in my judgement, has singularly failed to achieve a satisfactory solution with Mr Rogers that gives him the confidence that he will not face a future liability to pay for water.[10]In those circumstances, there is at least an element (I put it no higher than that) that the employer has brought this process upon itself. For all those reasons, I shall not make an order for costs.