England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE PETER CLARK)

		Royal Courts of Justice Strand London WC2 Tuesday, 15th May 2001

Tuesday, 15th May 2001

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal made by Mr Caryl Vytelingum in person. He is assisted by a friend, Mr Olanrewaju, who also assisted him with his case in the Employment Tribunal and in the Employment Appeal Tribunal.
2. The application is for permission to appeal against the order of the Employment Appeal Tribunal dated 5th December 2000. The Employment Appeal Tribunal, in which judgment was given by His Honour Judge Peter Clark, dismissed Mr Vytelingum's appeal against the decision of the Employment Tribunal. The Employment Tribunal heard Mr Vytelingum's claims at a hearing on 5th, 6th and 7th August 1998. For extended reasons sent to the parties on 3rd September 1998 the tribunal unanimously decided that Mr Vytelingum had not been unfairly dismissed. The tribunal also unanimously decided that he was not dismissed by reason of his race or of his trade union activities.
3. The background to the claims is that Mr Vytelingum, who is of South Indian ethnic origin, was employed as a senior clerical officer, initially with the Bloomsbury and Islington Health Authority and then with the successor body, Camden and Islington Community Health NHS Trust, the respondent to the claim.
4. In April 1994, Mr Vytelingum received an oral warning about poor time-keeping. There was a disciplinary hearing in June 1994 in respect of poor time-keeping and failure to comply with reasonable management instructions. In July 1994 he was given a first written warning. In November 1995 there was another disciplinary hearing following investigation into two incidents concerning failure to carry out reasonable management instruction. The outcome, which was confirmed in writing later in November 1995, was that he was given a final written warning which was effective for one year. He was warned that any further misconduct during that period would result in dismissal. Mr Vytelingum unsuccessfully appealed against the final written order warning.
5. In May 1996, Mr Vytelingum answered a telephone call from a partially-blind patient, Mr Marks. He kept the patient waiting while he answered the second call, which the patient alleged was a private call. The patient, who was angry, asked to speak to Mr Vytelingum's line manager, Miss Malcolm, who attempted to placate him with an apology. He wished to issue a formal complaint and an investigation was commenced. The investigation was managed by Miss Malcolm. There was an investigatory meeting in May 1996 at which Mr Vytelingum and his representative were invited to provide a list of questions to be put to the complainant. This was not done.
6. In June 1996 there was a Trust board meeting of a second-tier appeal into earlier misconduct incidents. The warning was upheld. Mr Vytelingum advised that he could invoke the Trust Victimisation and Harassment procedure against Miss Malcolm if he wished, but he did not do so.
7. In October 1996 there was a disciplinary hearing in respect of the telephone call incident. Mr Vytelingum had claimed that the second call was work-related. Details of his version of the second call were provided for the first time. However, the relevant matter was not considered by the hearing because it had not been provided five days previously. Mr Vytelingum was dismissed on the grounds of misconduct. He received four weeks pay in lieu of notice. It also appears that he received eleven days holiday pay.
8. On 15th January 1997 he presented to the Employment Tribunal an application claiming unfair dismissal. It appears from the details given in box 10 of the complaint that he also alleged race discrimination and victimisation by reason of trade union involvement. He alleged procedural irregularities relating to the evidence of witnesses. At that stage no money claims in respect of payments owed for his employment were made.
9. The claim was resisted by the NHS Trust. Further details were given of the application to the tribunal in June 1997. In February 1998, Mr Vytelingum wrote to the tribunal listing the claims that he wished to have considered. They now included extra payment in lieu of notice and back-dated pay increases. He sought permission to amend his application. Amendments were granted. The hearing took place before the tribunal in August 1998. As I mentioned, the claims were dismissed.
10. Mr Vytelingum then sought to appeal to the Employment Appeal Tribunal. An appeal can only be brought on a point of law. A preliminary hearing of his appeal was heard on 28th April 1999. It was adjourned to allow him to file an amended notice of appeal. In June 1999 the NHS Trust's solicitors sent a cheque to Mr Vytelingum representing what they said were the outstanding amounts, namely four weeks pay in lieu of notice. The cheque was returned. An amended notice of appeal was lodged and a further preliminary hearing took place on 14th October 1999. There were further attempts to settle the outstanding amounts, but no agreement has been finally reached between the parties as to the amounts outstanding.
11. The appeal was finally heard by the Employment Appeal Tribunal on 5th December 2000. The appeal was dismissed on the ground that the tribunal concluded that there was no error of law in the decision of the Employment Tribunal. The Employment Appeal Tribunal refused to make an award for costs and concluded that decision by making a plea to both parties to settle outstanding matters in respect of payments on which there was still a dispute, Mr Vytelingum's claim totalling £2,049.30 and the Trust's admission of a figure of £954.59.
12. The claims had not been adjudicated upon by the Employment Tribunal on the ground that they were out of time. The Appeal Tribunal held that it was permissible for the Employment Tribunal to rule those outstanding claims out of time for the reasons given in paragraph 9 of the extended reasons. As they were entitled to do that, there was no error in law by the tribunal in not adjudicating on those matters, which still remained in dispute.
13. I have explained to Mr Vytelingum that an appeal to this Court can only be brought with permission. That permission has been refused by the Employment Appeal Tribunal. Permission is only given if the appeal has a real prospect of success. An appeal can only have a real prospect of success in this Court if it can be shown that there was an error of law in the decision of the Employment Tribunal. There is no appeal against questions of fact.
14. At the beginning of the hearing this morning Mr Vytelingum started to present his case himself, summarising the points in his skeleton argument and in his notice of appeal. In the notice of appeal he says that he wishes to appeal on the ground that the Appeal Tribunal's decision was wrong and unjust; contained serious procedural failures and errors and inconsistences and irregularities; on the ground that the Appeal Tribunal ignored the rules and regulations of law; that they did not follow the Employment Rights Act 1996, Part X, chapters I and II; and had not followed the Human Rights Act 1998. Details are given to various articles of the Convention which, it is alleged, were not complied with. After some time Mr Vytelingum said that he would like his friend, Mr Olanrewaju to address me instead, and he has done that.
15. In summary the points, in addition to the items mentioned in the notice of appeal, are that there were procedural irregularities in the Employment Tribunal in that documents were included in the bundle by the other side, of which no notice was given to Mr Vytelingum and of which he had no knowledge. Complaint was also made about the failure of the NHS Trust to agree on the outstanding amount which Mr Vytelingum says he is owed and has not been paid. His difficulties in his present state of life have been explained to me. He has been unable to get a paid job since this matter started over nearly five years ago. He has not been able to obtain benefits.
16. I sympathise with the problems that Mr Vytelingum has had. I appreciate the difficulties which he has in trying to present a case to an Employment Tribunal and the Appeal Tribunal and to this Court without representation from his Union, the Transport and General Workers Union. He is grateful for the assistance that has been given by his friend. I have to decide this matter, however, not on grounds of personal sympathy but on grounds of what is the law. Can I find in these arguments an error of law on the part of the Employment Tribunal?
17. I am unable to find any error of law in the way in which the Employment Tribunal followed the procedure for hearing the case. The Employment Tribunal dealt with the unfair dismissal case by making findings of fact on the evidence. It concluded at the end of their extended reasons as follows:

"We cannot find as fact or draw an inference from the primary facts that Mr Vytelingum was racially discriminated against. He was not unfairly dismissed. He was not unfairly dismissed by reason of his trade union activities."

18. In my judgment those were conclusions which the tribunal was entitled to reach on the evidence put before them.
19. As for the dispute about the amounts of money, the Employment Tribunal were entitled to hold that those claims were out of time and therefore were not matters on which they were bound to adjudicate. They adjudicated on the matters of unfair dismissal included in the original application and the amended application. It is unfortunate that these matters remain in dispute and that the parties have not been able to settle them. But, as I have explained to Mr Vytelingum, the Court can only adjudicate on disputes which are brought before it in time. The Court is not in a position to require parties to settle on terms that they pay over money which they deny is owing. The matter of the disputed sum between the NHS Trust and Mr Vytelingum could not therefore be dealt with on this appeal. There is no error of law in the Employment Tribunal not adjudicating on it. There is no jurisdiction in the Court of Appeal to compel parties to settle cases which they do not wish to settle on terms proposed by the opposing side.
20. As for the generalised and non-particularised complaints about the breach of the Human Rights Act, I am unable to find any grounds of appeal. It seems to me from reading the papers that Mr Vytelingum has had full hearings by an impartial tribunal hearing all the evidence and giving reasoned decisions both at the Employment Tribunal level and at the appellate level. I am unable to find any substantial ground on which it could be said that there were legal irregularities in the procedures followed by the Employment Tribunal.
21. In those circumstances I have reached the conclusion that this appeal does not have any real prospect of success. If I gave Mr Vytelingum permission, his appeal would be rejected by the full Court, and the NHS Trust, who would be represented on the appeal, would be entitled to seek against him an order for the costs of an unsuccessful appeal. I would be doing Mr Vytelingum no favour in granting him permission to pursue an appeal which was, in my view, bound to fail. For those reasons the application is refused.
(Application for permission to appeal refused)