England and Wales Court of Appeal (Civil Division) Decisions

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

		The Royal Courts of Justice The Strand London WC2A Thursday 14 June 2001

Thursday 14 June 2001

1. LORD JUSTICE PETER GIBSON: The applicant, Miss Brigitte Lardier, seeks permission to appeal from the order of the EAT on 5 March 2001, dismissing her appeal from the decision promulgated on 24 May 2000 of an Employment Tribunal sitting at London (North).
2. The dispute between Miss Lardier and the employer, British Gas Plc, has a lengthy history. She was employed by the employer from 24 August 1987 until 31 March 1996 in its Research and Technology Division.
3. She worked as a secretary at one of the Division's sites, Watson House Research Station, Fulham, as a group secretary but in the early 1990s there was a reorganisation within the employer and the Fulham site ceased to be operational in 1993. She was retained as a redeployee. The employer in September 1991 restructured its staff grades. Her grade had been S4. Under the restructuring she was graded G2 and given a job description. She objected to being graded G2 - she claimed she should have been graded G3 - and she objected to the job description.
4. She appealed under the internal appeals procedure, which allowed an appeal to go through three stages. She went through two stages of the appeal procedure relating to her job description but failed on both. She gave notice that she wanted a stage 3 appeal to be heard but it was never heard. She was dismissed on 31 March 1996. For her last three years she had been a redeployee trying to secure alternative employment, but in December 1995 she had been warned that she would be dismissed for redundancy on 31 March 1996 unless alternative employment was secured. The Tribunal was to find that under the terms of the employer's redundancy scheme she received compensation for redundancy in a sum of £16,700.
5. On 4 May 1996 Miss Lardier applied to the Tribunal claiming unfair dismissal, for which she asked for compensation only, and breach of contract in respect of the employer's redeployment policy and the grading appeal procedures. She amended her originating application on 26 June 1996 to claim breach of rights under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (action short of dismissal) and sex discrimination, and to ask for reinstatement, instead of compensation, for unfair dismissal. Her complaint under section 146 was rejected by the Tribunal on 23 November 1996 as it was out of time and an appeal was dismissed by the EAT, Kirkwood J presiding, on 3 December 1997. There has been no appeal from that order.
6. A differently constituted Tribunal heard her remaining complaints in 1997. It found that the reason for her dismissal was redundancy and dismissed all her claims.
7. She appealed to the EAT. At a preliminary hearing the EAT, Morison J presiding, dismissed her appeal relating to sex discrimination but directed that her appeal on breach of contract and unfair dismissal should go to a full hearing. That full hearing took place before the EAT with Charles J presiding. On 11 October 1999 it allowed her appeal and ordered a remittal of her case on breach of contact and unfair dismissal to a differently constituted tribunal. But the EAT specifically held that three matters could not be raised again: (1) that Miss Lardier was dismissed for redundancy, (2) sex discrimination and (3) action short of dismissal. There was no appeal from that decision.
8. A fresh Tribunal did hear her case over three days in April 2000. At the outset of the hearing, however, the employer conceded that it had acted in breach of her contract and that she had been unfairly dismissed. It further agreed to pay her £25,000 for breach of contract, the maximum entitlement allowed by Article 10 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994, and £11,300 compensation for unfair dismissal, the maximum sum permitted at the time of her dismissal under section 124 of the Employment Rights Act 1996. The sole issue, therefore, for the Tribunal was the question whether the Tribunal should order reinstatement under section 114 to a grade 3 position, as she claimed, or re-engagement under section 115 in that grade, or make no order other than that for compensation (see section 112(4)).
9. That issue was pursued for three days by Miss Lardier in person. The Tribunal, having heard evidence by and for Miss Lardier and evidence for the employer, refused to order reinstatement or re-engagement because (1) the Tribunal could not order her re-employment at grade 3, a higher grade, as sought by Miss Lardier, (2) the relationship of trust and confidence between her and the employer had completely broken down, (3) she had used inappropriate and intemperate language in correspondence with the employer, and (4) she had even questioned the integrity of the Occupational Health Department. The Tribunal ordered her to pay the employer £500 costs because she had unnecessarily pursued an unrealistic remedy. Miss Lardier then appealed to the EAT against the Tribunal's decision. The EAT, Mr Commissioner Howell QC presiding, dismissed the appeal as not raising any arguable point of law, and refused permission to appeal.
10. Miss Lardier seeks permission from this court to appeal on nine grounds. The first is labelled "Unfair trial". Justice, she says, must be seen to be done. That is a basic principle. But her complaint does not establish any unfairness or that justice was not seen to be done. She complains that the employer conceded unfair dismissal and breach of contract and the maximum awards of compensation, but that means that she has achieved by her litigation all that she could achieve by way of compensation. No Tribunal could properly allow a conceded case to be fought. What she did not achieve was her amended claim for reinstatement or re-engagement, but the reasons given by the Tribunal why that could not be awarded in the circumstances of this case were, to my mind, cogent and are completely unassailable.
11. Secondly, she says that "Union representation on ET and EAT panels [is] biased and discriminating against non-Union Applicants". She makes a generalised complaint that tribunals are weak and those sitting on her case were weak. As a former EAT judge, I do not accept the generalised complaint, nor in the particular circumstances of this case can I see any basis whatsoever for her complaint. The reasoning for rejecting her arguments was convincing.
12. The third ground is labelled "Abuse of power, status and relationship, especially with his own ex-students. . . by Prof Peter Wallington". Mr Wallington represented the employer before the Tribunal and is said by Miss Lardier to intimidate tribunals because of his status. Mr Wallington, I believe, is a barrister and like any barrister he is no doubt available to be briefed by either side. Miss Lardier says that the chairman of the Tribunal in 1996 was "very likely to have been one of his students". I do not know the basis of that assertion and in any event it relates to a hearing on an issue which is now dead. Moreover, even if a Tribunal chairman was a previous student of a barrister who appears before that same Tribunal chairman, it provides no basis whatever for saying that the chairman cannot continue to sit on that hearing. There is nothing before me that shows that any of the Tribunal decisions or the EAT decisions is open to challenge on this ground, and I am not aware of any impropriety on the part of Mr Wallington as counsel.
13. Fourthly, Miss Lardier says that the Tribunal failed to address her claims for racial discrimination and disability discrimination. There was no such claim in her IT1 and I have already recorded how Miss Lardier was confined by the EAT to two issues, neither of which was racial discrimination or disability discrimination.
14. Fifthly, Miss Lardier submits that the Tribunal was perverse and biased in claiming that she had a fair hearing and that she was unreasonable in the way she pursued the proceedings about the remedy for unfair dismissal. Apart from the fact that Miss Lardier lost on the issue which she pursued after the employer had conceded, as I have described, I see no basis for this submission. The Tribunal was entitled to take the view, for the reasons which it gave, that to pursue reinstatement or re-engagement was quite hopeless.
15. Sixthly, Miss Lardier says that the Tribunal failed to address the consequences of the decisions of the EAT when Kirkwood J was presiding and when Charles J was presiding. She in fact appears to be complaining that the Tribunal did not look into matters which it was told by the EAT could not be looked into. As I have already said, the action short of dismissal point was concluded with the hearing before the EAT with Kirkwood J presiding, and there was no appeal from the decision then nor from the decision of the EAT with Charles J presiding. She is not able to take any point inconsistent with what was decided.
16. She has before me today said that she would now like to appeal the decision of the EAT when Charles J was presiding, but, as I have indicated, that judgment was delivered as long ago as 11 October 1999. This application for permission to appeal is not in her appellant's notice and in any event it is far too late now to seek to challenge that decision. As I have related, on the basis of that decision there has been a hearing before the Tribunal and an appeal from the decision of the Tribunal has gone to the EAT, Mr Commissioner Howell presiding, and it is that matter and that matter alone which is for me to consider today. Insofar as that application for permission to appeal long out of time can be treated as made, I unhesitatingly refuse it.
17. As her seventh ground she says that the Tribunal was perverse and biased in not complying with a direction of the EAT with Charles J presiding, that is to say, that she should not be precluded from arguing before the Tribunal an alternative argument of breach of contract based on a claimed contractual right to redeployment. But breach of contract was conceded by the employer before the Tribunal, which could not properly hear that argument in the circumstances. She obtained the maximum compensation for breach of contract. She asserts that under section 153 of the Trade Union and Labour Relations (Consolidation) Act 1992 she was entitled to an additional amount. But all that that section does is to treat as unfair for the purposes of Part X of the Employment Rights Act 1996 a dismissal which satisfies the conditions of that section, and the employer conceded the maximum amount recoverable under Part X. There is nothing in that point either.
18. As her eighth ground she says that the Tribunal was perverse and biased in awarding £500 costs and ordering £6,000 to be deducted from her basic award. It is unusual for an award of costs to be made in the Tribunal, but there can be no doubt that the Tribunal has a discretion to award costs up to £500 if in its opinion a party has acted unreasonably. In my judgment it is impossible to say that it could not properly find that Miss Lardier had acted unreasonably and that she could not be ordered to pay £500 towards the employer's costs of the three days' hearing. Her complaint about the £6,000 appears to be a directed to a holding by the Tribunal that she was not entitled to the basic award because that had to be set off against the redundancy payment made to her by the employer. She complains that she was taken by surprise by the employer's evidence on this, but she was on notice from the employer's IT3 that it was relying on the fact that she had received and accepted the sum of £16,700-odd compensation for redundancy under the terms of the employer's redundancy scheme, which was paid (together with an additional sum) into her pension fund. I see no perversity, as alleged by Miss Lardier, in the Tribunal's conclusion.
19. Finally Miss Lardier says that the EAT should have referred the case to the European Court of Justice in respect of compensation limits. She says that the appropriate principle is "equality between workers". She submits that that raises a point of European law. But she has not been able to point to any provision in the European legislation or any directive which deals with this point. I am not aware of any point of European law which arises. The legislation that was enacted here, and which limited the amount of compensation, binds both Tribunals and this court. If the United Kingdom had been in breach of European law, one would have expected the European Commission to have taken the United Kingdom to the European Court of Justice for doing so. I am not aware that any complaint has been made against the United Kingdom in respect of the limits on compensation. In my judgment this point is equally hopeless.
20. There are no real prospects of success on any of the grounds of appeal, nor has any other compelling reason been shown why this appeal should be allowed to go ahead. I therefore refuse this application.
(Application refused)