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 Strand London WC2 Thursday, 8th March 2001

Thursday, 8th March 2001

1. LORD JUSTICE PILL:This is first an application for permission to appeal and an extension of time in application 1996/6253, and second an application for permission to appeal reference 1996/6832.
2. I assume that the need for time on the first of those applications relates to a short period in the early part of 1996. That pales into insignificance in the context of the five year period that has elapsed since notice of appeal was served in 6253 on 11th February 1996.
3. Mr Armstrong seeks permission to appeal against decisions of the Employment Appeal Tribunal (EAT). He was due to appear in person today. This morning a fax has been received from his wife who confirms that he was due to be present today. The fax originates from an address in Paignton, Devon. Mrs Armstrong states that unfortunately her husband had a car accident when setting out for London and is badly shaken and not able to attend.
4. It appears clear that the applicant does, however, wish his applications to be considered this morning because Mrs Armstrong also states:

"I am enclosing a copy of his oral submissions that he wanted to present this morning with this fax in case it is possible for Mr Justice Hill to consider them."

5. I assume that is intended to be a reference to me.
6. I take that as a request that the application should be dealt with today, notwithstanding the inability of the applicant to appear. As an additional formality, his name has been called outside the court without response.
7. I have considered the written submission which Mr Armstrong would have presented orally had he been able to do so. I propose to deal with the applications on the basis of that document and the other material which is before me. I have only limited information as to why five years have passed since the first notice of appeal was served. The second was served on 7th August 1996; that is over four and a half years ago.
8. It appears that the applicant had requested that the applications be adjourned pending the outcome of other applications he had before the EAT. There is reference to serious delays having occurred at the EAT in dealing with other matters and also to some ill-health suffered by the applicant.
9. The Civil Appeal Office became concerned about the delay and, in March 1999, directed that the applications be listed for a dismissal hearing. At that hearing it was ordered that the applicant lodge further bundles and that the case be listed for hearing as soon as possible thereafter. I do have the essential documents in relation to the two applications in the bundles which the applicant has submitted. I should add that it is clear that the applicant believes that there are outstanding matters with the EAT. Indeed, in her faxed letter received this morning, Mrs Armstrong states:

"My husband also received a letter from the Employment Appeal Tribunal yesterday indicating that they are preparing to hear the case EAT1125/95/MAA again. (That is in connection with the Court of Appeal case PA 6253).

Also they are preparing to hear the case EAT/484/96/MAA that the application to the Court of Appeal PA 6832 is in connection with. These hearings will take place on April 4 2001."

10. I propose to confine my attention to the two applications which are before the court. They involved specific and discrete points. Any attempt on my part to explore further what other outstanding matters there are would only be likely to complicate what may be a complex situation. On the material before me I am able to deal with the two specific points which arise. I do so on their own terms and without considering or even knowing what is or may be involved with other matters before the EAT or any other tribunal.
11. The present applications arise out of an originating application made by the applicant on 21st July 1995. In it, the applicant states that the job he did for his employer, the Devon County Council, was that of part-time computer tutor; dates of employment being given from June 1993 to July 1995.
12. The action complained of is said to have occurred on 27th June 1995. Under the heading:

"Please give the type of complaint you want the Tribunal to decide."

13. The applicant has written "sex discrimination".
14. He stated that on 9th May 1995 he was informed by a community tutor that he would not be given the opportunity to continue with the Tuesday evening computer class which he had been taking for two years. The reason given was because of financial cutbacks from Devon County Council. No other reason was offered. He found, on 27th June 1995, on reading the prospectus for the following session that he had been replaced by a woman. He believes that this contradicts the Sex Discrimination Act 1975.
15. The County Council replied in the usual document, and stated in their reply:

"The County Council therefore denies that, in the act of replacing Mr Armstrong in the Tuesday evening class, he suffered any detriment on the grounds of his sex and denies that he was discriminated against under the provisions of the Sex Discrimination Act 1975."

16. On 31st October 1995, the application came before the Chairman of an Employment Tribunal sitting at Exeter. The applicant appeared in person. The County Council was represented by a personnel manager. The Chairman ordered the applicant to pay a deposit of £100 and gave these as his reasons, at page 29 of the bundle:

"1. This is the pre-hearing review in the case of Mr Armstrong against Devon County Council. He alleges sex discrimination.

2. The facts are fairly simple. Computer courses had been provided by the applicant on Tuesdays in the morning and in the evenings. Whilst he had taken them the previous year, during the current year he lost the Tuesday course to a Mrs Griffiths. It is not entirely the same course but no doubt it was a course which he could have taken.

3. The respondents claim that the reason why he was not appointed to the course was because of a complaint from the examining body the RSA in respect of one of their courses during the previous year.

4. Mr Armstong's point is straight forward. He simply says that Mrs Griffiths was put into the post instead of him and he jumps to the conclusion that this is sex discrimination.

5. I see no reasonable prospect of his persuading a tribunal that this was sex discrimination. This is a case where there clearly should be a deposit. I consider Mr Armstrong is acting vexatiously and the maximum I can order by way of deposit is £150. Having heard something of his financial position an appropriate deposit is £100."

17. Under Rule 7 of the Industrial Tribunals Regulations, the Chairman had power to make the order he did.
18. The applicant appealed to the Employment Appeal Tribunal against that order. The appeal was heard on 4th December 1995, Mummery J (President) presiding. There were no appearances at that hearing on either side; the applicant apparently having other commitments. The appeal was dismissed by the Employment Appeal Tribunal, which referred in its judgment to Rule 7 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, including Regulation 7(4). Mummery J stated:

"We have considered his [the applicant's] submissions. In our view they are misconceived. We agree with the submissions which the Devon County Council make in their Skeleton Argument. They have not attended to develop this argument. The submission is clearly correct. They say that Mr Armstrong's appeal is on the grounds that the opinion of the Chairman was perverse. They said it was quite the contrary. The position of the Chairman was properly made under Rule 7, and was wholly within his discretion. This Tribunal, with a limited jurisdiction on questions of law only, could not intervene unless it was shown that the Chairman's decision, in ordering the deposit, was contrary to established legal principle or was a decision which no reasonable Tribunal exercising that discretion could have reached.

We agree with that approach. Our conclusion, after considering the papers and the arguments advanced by Mr Armstrong in his written submissions, is that there is no arguable error of law in the way in which the Chairman exercised his discretion. He was entitled to make the order for £100 deposit. He was also entitled to include in the order a warning to Mr Armstrong that, if he persisted in participating in the proceedings relating to this matter, may have an award of costs made against him and lose his deposit. There is no legal error in that decision. The appeal is dismissed."

19. That decision was notified to the applicant on 15th December 1995.
20. On 18th December 1995, the application of 21st July was struck out by the employment tribunal. The reasons given by the Chairman, sitting at Exeter, were:

"The applicant was ordered to pay a deposit of £100 following a Pre-hearing Review held by me on 31 October 1995. The Order was sent to him on 2 November 1995. The applicant appealed against the order and accordingly all proceedings were stayed pending the decision of the Employment Appeal Tribunal. The appeal was dismissed on 4 December 1995. The applicant has failed to pay this deposit. I therefore strike out his Originating Application pursuant to my powers in this respect under Rule 7(7) of the Rules of Procedure contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, insofar as the Originating Application is in respect of Sex Discrimination. That leaves the claim for unfair dismissal which is itself the subject of a further pre-hearing review on 16 February 1996."

21. The applicant appealed to the EAT against that order. That appeal was heard on 12th July 1996, Mummery J (President) presiding, and at a preliminary hearing was dismissed. The applicant appeared before the EAT in person. It was held that the Chairman was entitled, on 18th December 1995, to strike out the application. Mummery J stated:

"We have reached the conclusion that we must dismiss this appeal. The Chairman acted as he was legally entitled, and indeed legally bound to do. The position was on 18th December 1995 that more than 21 days had expired since 2nd November 1995, and the £100 had not been paid. In so far as there was any stay of the proceedings, and therefore an extension of time for making the payment beyond the 21 days; under the Rules the Chairman was not allowed to make any extension which exceeded 14 days. By 18th December 1995, more than 21 days and more than an additional 14 days on top of that had passed. In those circumstances, the operation of the Rule requires that the tribunal shall strike out the application, because the order had not been complied with by remitting the £100 to the Secretary.

Mr Armstrong may feel that the operation of the law which produces that effect is harsh. He may feel that he had been lead to believe by the letter of 17th November 1995, that he had more time in which to make the payment than in fact the Rules allow. The position is, however, quite clear. He knew from 2nd November 1995 onwards that he was under an order to pay £100. If he wished to protect his position, he could have done that by making the payment under protest. That would have safeguarded his position while he was seeking to challenge the validity of the order by way of appeals to this tribunal, by way of reviews of this tribunal's order, and by way of further appeals to the Court of Appeal. In our view, the Chairman did what he was bound to do by the terms of Rule 7(7). He made no legal error. He had no discretion in the matter. This appeal must be dismissed, because the matter is not reasonably arguable."

22. Mummery J went on to state that nothing the EAT had decided on that day affected an application for review which the applicant had made.
23. A review of the EAT decision was requested. That was directed to the employment tribunal which refused the review on 2nd May 1997. I mention that only as a part of the background. It has no bearing upon the decisions to be made today, any more than it had upon the decision to be made by the EAT upon the appeal to which I have just referred.
24. The applicant has made detailed written submissions as to the injustice which he claims to have suffered. In the submissions which he would have wished to present orally today, he refers to the RSA question which was mentioned by the Chairman who ordered the deposit of £100. He makes complaints about the procedures which have been followed. He was not given warning of the hearing. He submits that there were breaches in the Rules. He submits that the employment tribunal took a matter into account which they should not have taken into account. He submits that they had regard to a "slanderous, unsubstantiated accusation." He submits that there has been a breach of natural justice in the circumstances. He refers to authority and he complains that he was taken by surprise by an allegation of dishonesty made at the last minute. He complains of the refusal of the EAT to interfere in relation to the use of discretionary powers against him.
25. As I have indicated, I have two specific applications to deal with. The complaint in the originating application was one of sex discrimination. I have considered the complaints made, and the submissions made, by the applicant. I can see no error of law in the decision of the Chairman on 31st October to order a deposit. Whatever other defects there may or may not have been in the procedures of the Devon County Council or the procedures of the employment tribunal, I can find nothing in the papers which would indicate that a complaint of sex discrimination has any prospect of success.
26. The Chairman stated that the applicant had jumped to the conclusion that there had been sex discrimination. Of course there are cases in which, in the absence of a satisfactory explanation for action taken by an employer, a tribunal may infer that there was a sexual motive in the action taken. I can find nothing in the present papers to justify that it is arguable that any such inference could be drawn. I agree with the Employment Appeal Tribunal that the Chairman on 31st October was entitled to make the order he did in relation to a deposit.
27. I underline what Mummery J says about the limited jurisdiction of the EAT and of this court. For this court to grant permission to appeal, there must arguably be a legal error in the decision of the employment tribunal complained of. I can find no such error.
28. As to the second order, striking out the application, I agree with the reasoning of Mummery J save one point which I will consider in a little more detail. Attention is rightly drawn to the fact that an appeal was made against the ordering of the deposit and that appeal was not decided until 4th December 1995 and notified on 15th December. I can see no explanation why, had he wished to, the applicant could not have found out the decision of the tribunal at an earlier time had that been material to him. It is right that he was notified of the order of 31st October, at which he appeared in person, on 2nd November. There is nothing to suggest that the order is suspended if an appeal is made. He has never paid that sum of £100. As Mummery J says, he could have paid it to protect his position even if he did not agree with the fact that he should do so.
29. I note that the striking out occurred only shortly after the notification of the appeal decision of 4th December, indeed it was on the next working day. It does not follow from that, in my judgment, that the striking out on 18th December was outside the jurisdiction of the employment tribunal or was a decision which could not properly be made.
30. Mummery J has approached the matter on the basis that the Chairman on 18th December had no discretion and was legally bound to strike out. The point has been made that a discretion as to time may appear in Rule 15. For present purposes, I am prepared to assume in the applicant's favour that there was a discretion in the Chairman on 18th December; however, in my judgment it was not arguable that the Chairman was not entitled to make the decision to strike out which he did. He considered the matter and stated his reasons for doing what he did, and that decision cannot in my judgment be impugned in this court. It is that decision which the applicant has to show was arguably wrong if permission to appeal to this court should be given. I do not decide the point as to whether a discretion existed or not. In my judgment, both orders were properly made: the order of 31st October 1995 and the order of 18th December 1995. I do not propose to make further investigation into the very long delay which has subsequently occurred.
31. At bottom, this is a case of alleged sexual discrimination which has no prospect of success. The orders were properly made and I am quite unable to find any arguable ground of appeal which would justify this court in granting permission to appeal. Accordingly, the applications for permission are refused.