England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice The Strand London Wednesday 21 November 2001

Wednesday 21 November 2001

1. LORD JUSTICE MUMMERY: The applications before the court this morning by Dr Lynn, who appears in person, are these. First, he wishes to have permission to appeal against the dismissal by the Employment Appeal Tribunal of his application to review a decision made at a preliminary hearing in April 1999. Secondly he wishes to have permission to appeal against the decision of the Employment Appeal Tribunal on 21 March 2001 to dismiss his appeal against the decision of the Employment Tribunal contained in the extended reasons sent to the parties on 11 November 1998. As these applications are over three months out of time, having been lodged in July 2001, he also seeks permission to extend the time in which to appeal.
2. The background to the applications can be briefly stated. Dr Lynn was appointed to be a part-time science teacher with the respondent school. The appointment, which was made under a letter of 25 July 1992, took effect from September 1992 and continued until Dr Lynn was dismissed in September 1997, having not attended to discharge his duties for a period running between February 1996 and March 1997. His part-time duties involved teaching three days a week. The other two days were spent by him on research for his doctorate.
3. Problems arose during the course of his employment. He expressed concerns about the effect of passive smoking and raised those with the authorities. He also suffered from health problems, that being the main reason why he was away for the period that I have mentioned.
4. The problems which arose led him to present to the Employment Tribunal in August 1996 an originating application making a number of complaints, including unlawful deductions in wages. Following his dismissal in March 1997, he presented another application in April 1997 complaining of unfair dismissal.
5. The Employment Tribunal, which heard the complaints over a period of five days, rejected the claims. The claims included, as well as unfair dismissal, complaints relating to sex discrimination and breach of equal pay law in relation to the pension scheme applying to teachers. The position was that when he was appointed Dr Lynn was sent the guide to the superannuation scheme. The guide explains that, as far as part-time teachers were concerned, membership of scheme was not automatic. It was necessary for a part-time teacher to opt for membership, and Dr Lynn did not do so. He complained that the arrangements, as far as he was concerned, involved breaches the Equal Pay Act, the Equal Pay Directive and Article 141 of the Treaty.
6. The Employment Tribunal dismissed these claims, saying that this was not a case in which less favourable terms had been applied to him; there had been no discrimination against him on the ground of sex; and there had been no breach of the Equal Pay Act 1970 or of the provisions of European Community law. In holding that there was no sex discrimination, the Tribunal expressly found that complaints which he was seeking to make under that head were in any event out of time. As far as the equal pay complaints were concerned in relation to the pension, he had not joined and there was no treatment which he could claim to be less favourable on the ground of sex.
7. So far as the unfair dismissal is concerned, the Tribunal found that the reason for his dismissal was prolonged absence on the ground of ill-health, not by reason of grievances which he had raised, or on health and safety matters. Applying the statutory test, the Tribunal found that the dismissal for that reason was fair.
8. Dr Lynn requested the Employment Tribunal to review its decision. That they refused to do. He then sought to appeal to the Employment Appeal Tribunal. There was a preliminary hearing at which the appeal was allowed to continue simply on one ground: his complaint relating to access to the pension scheme. He was not allowed to proceed on other grounds. The Employment Appeal Tribunal refused to review that decision and refused him permission to appeal against it.
9. At the substantive hearing, on the one ground on which he had been allowed to proceed, the Employment Appeal Tribunal, in a very detailed judgment given by the President on behalf of the Tribunal on 21 March 2001, considered all of Dr Lynn's arguments in relation to the pension scheme point and unanimously dismissed them, holding that there was no error of law in the decision of the Employment Tribunal. The judgment concluded at paragraph 23:

"We must bear in mind the limited nature of the issues permitted to come forward to this full hearing. We trust that we have now dealt with, at any rate, all the main points that have come forward to us; we have been able to find no error of law on the Employment Tribunal's part, relative to the issue that was allowed to come forward and accordingly we must dismiss the appeal."

10. On the same date the Tribunal refused a further request for a review.
11. The permission to appeal application was fixed to be heard by this court on 13 November (last week). Following a call made by Dr Lynn to the Civil Appeals Office that morning informing the office that he was not well enough to attend, I made a direction that the matter should be adjourned on the basis that a medical certificate should be provided by Dr Lynn relating to his condition and the matter should be relisted. A medical certificate was duly supplied and the matter was relisted today.
12. Dr Lynn has made concise submissions as to why he says he should be permitted to appeal both against the refusal of the review by the Appeal Tribunal and the dismissal of his appeal. I make two short points before referring to the arguments. First, as Dr Lynn is aware, permission to appeal is only granted by this court if it is satisfied that there is a real prospect of the appeal succeeding. Secondly, I would point out that for an appeal to succeed in this court it has to be shown, as it had to be shown in the Appeal Tribunal, that there was an error of law in the decision of the Employment Tribunal. The question is: is there a real prospect of establishing that there was an error of law in the decision of the Employment Tribunal of the claims relating to unfair dismissal and access to the pension scheme?
13. Dr Lynn's mains points are summarised in his grounds of appeal in this way:

(1) The Appeal Tribunal failed to use its powers to give effect to his rights under the European Convention on Human Rights and committed an error of law under section 3 of the Human Rights Act 1998 by failing to give effect to those rights when exercising its powers under statute.

(2) The Appeal Tribunal is required to give effect to his Convention rights under section 2 of the Employment Tribunal Act 1996 and failed to do so.

(3) The Appeal Tribunal failed in its obligation under the Human Rights Act to contemplate the scope of jurisdiction of the tribunal below and that tribunal's failures of a fair hearing.

(4) There were breaches of section 6(1) of the Human Rights Act 1998 and proceedings by way of section 7(1) may be brought by exercising a right of appeal.

14. Those points have been amplified by Dr Lynn. He has reiterated his complaints about failure to comply with the Convention rights. He says that his rights have been infringed by a failure to permit a review of the decision; the matter was not fully considered; and, as far as the access to the pension is concerned, the Appeal Tribunal failed not only to comply with Convention rights, but failed correctly to interpret such rights as he had under European Community law.
15. As I understand Dr Lynn's arguments, he is also questioning the compatibility with the Convention of the limitation by our domestic law of appeals from the Employment Tribunals to points of law. He has also made a general complaint of a Convention nature there was no equality of arms in his case, he having acted in person. Finally, he says that by both the refusal of the review and the dismissal of appeal he has been denied effective access to the courts for the vindication of the grounds.
16. I have considered all of these arguments and reached the conclusion that this appeal against the review and the proposed appeal against the dismissal of the appeal from the Employment Tribunal have no real prospect of success. I am unable to detect in the very detailed decision of the Employment Tribunal any error of law in the manner in which it interpreted and applied the provisions of the Employment Rights Act in relation to the claim for unfair dismissal, or in the way that the Tribunal interpreted and applied to the facts found by it the provisions of the Equal Pay Act, the Sex Discrimination Act and the relevant provisions of European Community law.
17. So far as the refusal of the review is concerned, that was a matter on which the Appeal Tribunal have a broad discretion. This court would not interfere with that exercise of discretion unless it could be shown that there had been some error of legal principle, or failure to take relevant matters into account, or it could be shown that the decision of refusing a review was one at which no reasonable tribunal could have arrived.
18. In my view, there is no real prospect of Dr Lynn being able to establish that there was a flawed exercise of discretion in refusing a review. I know that Dr Lynn will be disappointed, having committed a great deal of time and effort to pursuing these matters through the Employment Tribunal and the Appeal Tribunal, but I have come to the clear conclusion on consideration of these papers that there is no real prospect of either application for permission succeeding and I would therefore refuse them. The question of extending the time to appeal does not therefore arise for decision.
19. LORD JUSTICE BUXTON: I agree and there is nothing that I wish to add.
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