England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
APPLICATION OF APPELLANT FOR PERMISSION
TO APPEAL

		Royal Courts of Justice Strand London WC2 Thursday 5th July 2001

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal. It is made by Mr David Miller in person. The decision which he wishes to appeal is that of the Employment Appeal Tribunal. That decision was given on the 14th February 2001. The decision the contained in the judgment of Mr Commissioner Howell QC, given on behalf of the appeal tribunal, at a preliminary hearing. He explains the background to the case and the submissions made in support of the appeal by Mr Miller in a judgment of 13 pages, which concludes:

"That there was no arguable point of law in the appeal and therefore the appeal should be dismissed."

2. Mr Miller was attempting to appeal a decision of the Employment Tribunal, at London South. The extended reasons for the Employment Tribunal's decision were sent to the parties on 28th July 2000. Those reasons explain the unanimous decision of the tribunal that Mr Miller's complaint of unfair dismissal against the respondent Barnardos failed and he was ordered to pay £150 in respect of the costs that Barnardos had incurred in defending the application.
3. The background to the case is rather unusual and requires some fuller explanation. Mr Miller was a residential social worker and he was employed as such at the Barnardos between February 1990 and December 1999. During the course of his employment he brought a case against them of race discrimination. That claim was made in an application on an dated the 18th March 1999.
4. In the form box 1, Mr Miller said that his complaint was under the Race Relations Act. In box 11, which gives further details of the complaint, he said this:

"I feel that I have been subjected to discrimination, this has derived from harassment that I have been subjected to at my place of work and the way that this has been dealt with when it was confronted. I have been through the procedures that my organisation stipulates and have experienced ongoing discrimination and victimisation whilst going through this process, to the extent that I cannot see any amicable solution to the initial concerns raised.

These experiences have had a detrimental effect on me and my family's health, which led to me being unable to work. Due to these experiences I have been left with no alternative but to take these matters further and in the hope that I can put this ordeal behind me and my family, with the aim of re-establishing a career on a firmer footing."

5. That complaint was heard in the Employment Tribunal over a five day hearing in December 1999. But no decision was given on the case because it was settled and the terms of settlement are referred to in a brief decision of tribunal to this effect:

"Settlement having been agreed between the parties and the terms having been reduced to writing by consent, this originating application is withdrawn upon compliance by the respondent of the terms of settlement on or before 23rd December 1999. Liberty to apply was given on or before 6th January and it was further stipulated that if no application was made by that date, the application would be dismissed on withdrawal by the applicant."

6. Under the terms of settlement, which were signed by counsel, Mr Seffey, acting on behalf Mr Miller, and by the Barnardos representative, Miss Rose Sunter, it was provided that Barnardos would undertake, first, to pay to Mr Miller's solicitors on or before 23rd December 1999, by cheque, the sum of £20,000, as damages in full and final settlement of his complaint of race discrimination and victimisation, contained in the originating application, without admission of liability. Secondly, Barnardos undertook to supply a reference, in the form annexed, if requested for the same and not to depart from it, unless with the express permission of Mr Miller.
7. Barnardos agreed to continue to pay his sick pay entitlement until 31st December 1999. Mr Miller undertook to withdraw the application on receipt of the agreed sum. It was then provided, in clause 3 of the terms and conditions of settlement, as follows:

"And all parties to this agreement agree that the applicant's contract of employment with the respondent will terminate on 31st December 1999."

8. The terms of the settlement were carried out. What then happened was that Mr Miller presented a second application to the employment tribunal.
9. In this application, which is dated 13th January 2000, he stated in box 1 that his complaint was discrimination, infringement of rights and unfair dismissal. In box 4, which asks for the applicant to provide the dates of employment, it is completed as follows, from 2nd/1990 to 12/1999.
10. In box 9, it says:

"If your complaint is NOT about dismissal, please give the date when the matter you are complaining about took place."

11. And the date inserted there is 14th December 1999. It will be recollected that that is the date of the settlement. Then in the details of the complaint, Mr Miller says this:

"I believe that I have been subjected to victimisation, due to the fact that I bought proceedings against my employers, which has led to my employment being terminated on 31st December 1999.

This was made apparent in an agreement forming part of a settlement which I believe has infringed my rights.

In the former application to the Tribunal, my employment was not in question, therefore any decision would not have jeopardied my employment in any event.

I therefore believe that I have been discriminated against due to my employers terminating my contract of employment."

12. This application was resisted by Barnardos, who relied on the settlement agreement and applied to the tribunal to strike out the claim. That application was unsuccessful. It was heard at London South on 27th April 2000, and the unanimous decision of the tribunal was that the originating application should not be struck out and that there should be a full merits hearing, fixed for 20th July 2000.
13. I should mention, because of one of the points which has been raised by Mr Miller, that the chairman of the tribunal on that occasion was Miss Christine Hyde, who was sitting with two lay members.
14. The decision, which is contained in the extended reasons sent to the parties on 4th May 2000, explained why the tribunal thought that the matter should go to a full hearing. I refer, in particular, to paragraphs 16 where the conclusion of the tribunal is stated as follows:

"We considered that the applicant may well face considerable evidential and legal difficulties in establishing the claim in the second originating application. However, at this stage, we consider that it would not be right to strike out his application principally because there is a conflict as to the facts at the centre of his allegations. We could not resolve such a conflict on this application."

15. As directed, the full hearing of the application on the merits took place in July 2000 and the tribunal which conducted the hearing on 20th July was again presided over by Miss Christine Hyde. The unanimous decision of the tribunal was that the complaint of unfair dismissal should fail. The tribunal's conclusions were that they were completely satisfied that there was no dismissal in the case. They said in paragraph 16:

"We were satisfied that the Respondent [that is Barnardos] had negotiated in good faith with the Applicant's Counsel and that they had not specified that they would no longer allow the Applicant's to return to his former place of work. Having heard evidence from one of the two parties directly involved in the negotiations we saw no reason to reject Mrs Sunter's evidence. [Mrs Sunter had represented Barnardos at the hearing]. It was consistent with the Respondent's offer to the Applicant during negotiations of the considerable expense of underwriting a Diploma of social work course for two years and/or providing the Applicant with relocation expenses for a period of 4 years if he chose to take up alternative place of employment that they did not wish to compel his departure from their employment. We also had regard to the agreed evidence that the Respondent had given the Applicant good appraisals and were content to provide a good reference to the Applicant at the termination of his employment. We accepted Mrs Sunter's evidence that it was the Applicant's Counsel who took the lead in the negotiation discussions. In those circumstances we concluded that there was no dismissal in this case and that the Applicant's complaint under section 95 of the 1996 Act fails."

16. Mr Miller then appealed to the Employment Appeal Tribunal and, as already indicated, they dismissed the appeal at a preliminary hearing having considered all of Mr Miller's submissions and concluding that they did not reveal any point of law.
17. As Mr Miller obviously appreciates, he can only appeal to this court, as he could only appeal to the Employment Appeal Tribunal, if he could identify that there was an error of law in the decision of the Employment Tribunal or in the procedures which it followed at the hearing. There is no appeal on questions of fact. Mr Miller also has to persuade the court that there is a real prospect of his appeal succeeding on one or more of the grounds which he has relied on, for seeking to challenge the decision of the tribunal.
18. In his written submissions, Mr Miller made a number of complaints. He made a complaint that he had not had an impartial hearing and, as evidence of bias, referred to the fact that the same chairman, Miss Hyde, had chaired both the hearing of the Barnardos application to strike out his originating application and at the merits hearing in July 2000. He complained that there were procedural irregularities. He also complained that the decision of the tribunal on the dismissal point was wrong in law, unreasonable and perverse and unsupported by the evidence. He submitted that the tribunal had misdirected itself on the effect of the agreements. This was a case where there had been a fundamental repudiatory breach by Barnardos, which had resulted in him being dismissed and that dismissal was unfair.
19. At the hearing today Mr Miller has very helpfully produced a typed summary of his arguments in support of his application for permission. He has taken me through these points in detail, referring to relevant pages of the bundle. His first point is that his appeal raises a question of law on the construction of the agreement, which the tribunal used to substantiate their finding of fact and their conclusion that there was no dismissal. He says that this is a misdirection in law which has led to a perverse conclusion and the cause of that conclusion is the result of the misunderstanding about the true effect of the settlement terms and conditions.
20. He then referred to a number of passages in the documents. He submitted that, in his view, there was an error of law by the tribunal. They failed to consider whether the agreement of 14th December 1999 was a valid agreement. They failed to consider whether there had been a dismissal within the meaning of section 95 of the Employment Rights Act 1996, and had failed to consider whether what had been done transgressed the provisions in section 203 of the same Act. He said that the tribunal had failed to resolve a conflict on the facts about the agreement, had failed to apply the correct tests, in considering the merits of his claim, had not provided an impartial tribunal for the full merits hearing on the 20th July, and had further failed to provide a review which he had requested. I omitted to mention that Mr Miller had, after he had received the extended reasons for the employment tribunal's decision, made an application for a review of it, which was refused on 16th August 2000. He made a similar application to the Employment Appeal Tribunal, after they had given their decision and on 1st May 2001 the Appeal Tribunal had refused the application for review.
21. Mr Miller then referred to a number of authorities, in particular, the case of Igbo v Johnson Matthey Limited (1986), Campbell v Dunoon and Cowal Housing Association Limited (1992) IRLR 528 and Television Ltd v Wallis (1978) IRLR 136. He says that there was an agreement reached on 14th December 1999, but the agreement was simply in relation to damages for the discrimination claim that was before tribunal. There was no agreement with regards to any future claim. There was no evidence that he did not want to remain at his previous place of employment and therefore the agreement could not have determined this by itself. There was no agreement, he says, that deprived him of his right to bring a claim for dismissal. He concluded by saying that this was a genuine issue of law, which had to be resolved by a proper disposal of his case, in accordance with an impartial procedure and according to law.
22. I have considered these very carefully thought out arguments and I have reached the conclusion that this appeal does not have a real prospect of success. My reasons for that are this. They are quite brief.
23. On 14th December 1999, Mr Miller made an agreement settling his discrimination claim. As part of that agreement, he was to receive compensation, £20,000. I agree that, if that had been all that the agreement said, then, if Barnardos had subsequently ceased to employ him, he would have been dismissed and could bring a claim. But there were other terms and conditions of the settlement; notably the agreement to supply him a reference, if requested, that would indicate an intention on his part to leave their employment, but I would agree that, by itself, that is not necessarily conclusive of the fact that he left by agreement.
24. What is conclusive of the fact is the provision in clause 3, that the parties had agreed that the contract of employment would terminate on 31st December 1999. That was part of the terms and conditions of settlement signed by the representatives of the parties.
25. The Employment Tribunal found, as a fact, that that was a voluntary agreement, reached without duress, and that was a termination which took effect without being a dismissal within the meaning of section 95. That settlement had, the tribunal found, been negotiated in good faith on the part of Barnardos and on Mr Miller's side had been negotiated on his behalf by counsel and with the benefit of counsel's advice.
26. My conclusion is that, as a matter of law and on the basis of the facts found by them, the Employment Tribunal were entitled to conclude and did so, without committing any error of law, that there was, in this case, no dismissal within the meaning of the Employment Rights Act 1996, which would entitle Mr Miller to bring a second claim based on unfair dismissal, following the settlement of his first claim, based on race discrimination.
27. I should add that I also agree with the points made by Mr Commissioner Howell QC in the Appeal Tribunal, in response to similar arguments which have been advanced through that tribunal by Mr Miller. I therefore refuse the application for permission.
28. Having regard to the very full way and care with which you took to present your submissions, I will direct that you can have a transcript of the judgment I have given and that will be provided to you at public expense.