England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND AN EXTENSION OF TIME

		Royal Courts of Justice Strand London WC2 Tuesday, 30th July 2002

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal and for an extension of time in which to appeal. The application is made in unusual circumstances. The applicant in the proceedings for unfair dismissal, harassment and victimisation was Mr Carter, who has unfortunately died. The proceedings in this court have been possible because an order was made by the Employment Appeal Tribunal giving authority for Mr Carter's representative, Mr Clancy, to pursue the appeal.
2. The history of the proceedings is this. Mr Carter started the claim in the Employment Tribunal on 27th July 1999. That was the date on which he presented his IT1 claiming he had been unfairly dismissed. That was coupled with claims of harassment and victimisation. He said in a form completed by himself that over many years he had been the victim of harassment and victimisation and had been falsely accused of obtaining financial information unlawfully. He said there were many instances - in fact too many to be listed - but the end result was that he was now unemployed due to no fault of his own. He alleged that that was the result of a concerted effort on the part of the management of his employers, The Cannock Chase Technical College, to dismiss him. He had been made redundant by them. Before that, he made a complaint to management regarding a timetable listing his hours and duties for work that he did not receive for almost 12 months.
3. I refer to a brief summary typed out and attached to the IT1 because that was relied upon by Mr Clancy in his argument that this was, in truth, a case which falls within Section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992, relating to the case of a person being dismissed on grounds relating to union membership or activities. I quote from the attachment to the IT1:

"I was not allowed to, indeed I was prevented from, giving my decision on the acceptance or refusal of the conditions contained in my new contract of employment.

I was to give my decision between 9 and 9.15 on Wednesday the 28th of April at a pre-arranged meeting. On union advice I had cancelled this meeting and informed all management concerned of this, also stating that I would not be attending this meeting.

Management concerned has conceded that during 9 and 9.15 they had made themselves unavailable by telephone.

After trying in vain to contact Mrs Jo Bell from 9.05 until approx 9.20 she managed to contact me at 9.25 approx. She did not want to hear what I had to say, stating that I was fired, I was too late and that I was to remove myself from the premises by 10.00 that morning."

4. That is the claim heard by the Employment Tribunal in Birmingham, on which a decision was given on 20th October 2000 following a hearing on 23rd August at which Mr Carter was represented by his friend, Mr Clancy.
5. In the extended reasons sent to the parties on 20th October 2000 the tribunal unanimously decided (1) that Mr Carter was unfairly dismissed, (2) that he had contributed towards his dismissal and it was just and equitable to assess the extent of contribution at 50 per cent, (3) it would not be just to order reinstatement or re-engagement, and (4) the case would be listed for a hearing on compensation on 22nd September. The hearing on compensation was not held until 11th December.
6. The extended reasons for the decision on the remedies hearing was sent to the parties on 22nd January 2001. The unanimous decision of the tribunal was that the governing body of Cannock Chase Technical College was ordered to pay to Mr Carter the sum of £2,583.10. That took account of the 50 per cent reduction for contribution to his own dismissal and also took account of the fact that Mr Carter had received an ex gratia payment from the college on or about 20th August 1999 of £2,643. That figure was taken into account to reduce his losses.
7. Although Mr Carter had succeeded in establishing unfair dismissal and in recovering compensation, there was an appeal by him to the Employment Appeal Tribunal. At the Employment Appeal Tribunal Mr
8. Clancy acted as Mr Carter's representative. As the tribunal recorded, Mr Carter had died on 25th February 2002. The hearing at the appeal tribunal took place on 25th April 2002. It was at that hearing that Mr Clancy was appointed as the appropriate person for the purpose of continuing the appeals on behalf of Mr Carter's estate. The appointment was made under Section 206 (4) of The Employment Rights Act 1996. The Employment Appeal Tribunal, chaired by His Honour Judge Peter Clark, dismissed the appeal on the ground that there was no error of law in the decision of the Employment Tribunal.
9. An appeal notice was presented to this court by Mr Clancy setting out the grounds on which it was sought to appeal. Mr Clancy has been given permission to appear today to speak on behalf of Mr Carter's estate.
10. Before I deal with Mr Clancy's submissions, there are two points of a general application which I make in case there should be any misunderstanding about the power of this court to deal with Mr Carter's appeal.
11. The first point is that an appeal to the Court of Appeal from the decision of an Employment Tribunal only lies on a question of law, that is, for example, a matter of the interpretation of a section in one of the relevant employment Acts, a misunderstanding by a tribunal as to the relevant law or some irregular legal procedure in the tribunal. What I would wish to emphasise is that there is no power in this court to entertain appeals on questions of fact or on questions which arise outside the proceedings in the Employment Tribunal.
12. The second point is that permission to appeal is required and for that purpose the court has to be satisfied that the appeal has a real prospect of success. There is no point in giving permission to pursue an appeal which is likely to fail, particularly as an unsuccessful appeal in this court is likely to result in an
13. order for costs being made against the unsuccessful appellant in favour of a successful respondent.
14. With those two points in mind, I look more closely now at the background of this case and then I will deal with Mr Clancy's submissions. Mr Carter has been employed as a computer technician by Cannock Chase Technical College from December 1990 until he was dismissed by Miss Bell, the director of Academic Resources, on 28th April 1999. There was an unsuccessful internal appeal, which was rejected in July 1999. The effective date of the termination of Mr Carter's employment from college was 25th July 1999. It was two days after that that he took out the proceedings in the Employment Tribunal. He was a member of a union, UNISON. It does not appear from his IT1 or any of the papers relating to the proceedings that he was represented by them in the tribunals, although he was receiving advice from the union in relation to his dispute with the college about his contract, his job description and the duties which he could be required to perform as a computer technician.
15. The facts found by the Employment Tribunal are these. The first was that on 12th February 1999 a job description and a renewed contract of employment for the position of a computer/electronics and general electrical technician were produced and made available to him and his union representative for consideration and approval. On 1st March 1999 he accepted the new job description. He conveyed his acceptance orally to personnel. The contract of employment, apart from the new job title and increased salary, was on the same terms and conditions that he had had since August 1995. In the contract referring to his duties it stated:

"2.1 You will be employed as a computer/electronics and general electrical technician in which capacity you will be required to perform such duties consistent with your position.

2.2 Your duties will include but will not be limited to those outlined in your job description."

16. In his job description, among his main duties and responsibilities, were minor repairs and maintenance and preparation of materials and equipment for classes and examinations.
17. On 13th March 1999 he received a list of duties regarding preparing electrical equipment for the Electronics Examination Board in June 1999, practical examinations. Following receipt of the list Mr Carter refused to carry out the work in connection with the examinations. It was on the basis of that refusal that Miss Bell dismissed him. The tribunal noted that he was dismissed for grounds of redundancy. That was clearly wrong, as the tribunal held. The tribunal found that he was not dismissed for redundancy. The reason for his dismissal was that he had refused to carry out work for the college in connection with the June 1999 examinations to which I have referred. That refusal came within the definition of conduct, not redundancy. I refer to paragraph 20 of the extended reasons. The tribunal went on to explain why they found in favour of Mr Carter that the decision to dismiss him was unfair.
18. First it was taken without ascertaining the availability of his union representative, Mrs Thompson. Secondly, there was no
19. properly convened disciplinary tribunal, which would be normal in a case of dismissal for misconduct. Further, Miss Bell did not have authority to dismiss Mr Carter. These were procedural errors not addressed on the internal appeal. In consequence, the tribunal found that the procedural defects meant that Mr Carter's dismissal was unfair. So he succeeded in establishing his claim of unfair dismissal. It was subject to a further consideration. That is to what extent had he contributed to his own dismissal. That is a relevant consideration in determining claims for unfair dismissal under the Employment Rights Act 1996. The tribunal stated in paragraph 22 that Mr Carter had contributed to his dismissal by refusing to carry out the duties required of him for the June examinations. It was found that those duties fell within the terms and conditions of his contract. In those circumstances it was just and equitable to assess his contribution at 50 per cent. That had a knock on effect on the amount of compensation he was entitled to recover. Mr Carter had elected for reinstatement or re-engagement, but the tribunal refused to make those orders for the reasons stated in paragraph 23, namely, first, he demonstrated a profound dislike of the college's managers and senior management, which made reinstatement and re-engagement an inappropriate remedy and, secondly, he contributed to his dismissal. So the tribunal found it was not just to order either reinstatement or re-engagement. The appropriate course was to direct a remedies hearing for the assessment of compensation. I have already referred to the hearing that later took place.
20. I have no power in this court, and the full court would have no power, to question the findings of fact made by the Employment Tribunal. They heard the evidence. They decided what the facts were. I focus my attention on whether there is any error of law in that decision. The Employment Appeal Tribunal were unable to find one, but it is possible that this court could find one. So I look at the grounds set out by Mr Clancy in the appeal notice. They are listed at follows:

1) there was a serious procedural error in law by the Employment Tribunal at the liabilities hearing, which severely prejudiced Mr Carter's claim that he had been unfairly dismissed for following trade union advice;

2) in dismissing Mr Carter's appeals the Employment Appeal Tribunal had failed to find at ground 2 that the formal burden of proof in claims of victimisation on union membership or activities contrary to the Trade Union and Labour Relations (Consolidation) Act 1992, Section 152 is on the complainant;

3) Mr Carter claimed in his originating applications that he had been dismissed on grounds of victimisation and for following trade union advice;

4) this claim of dismissal for an automatically unfair reason should have been addressed under the Trade Union and Labour Relations Act 1992, Section 152, by virtue of Section 98 (6) of the Employment Rights Act 1996;

5) Mr Carter's claim of unfair dismissal for following trade union advice was severely prejudiced when the respondents were allowed to go on to argue that they had dismissed Mr Carter for a potentially fair reason. In their notice of appearance the respondents claim they dismissed him for conduct or some other substantial reason;

6) the primary findings of fact and inferences drawn by the Employment Tribunal led them to conclude Mr Carter had been dismissed for a conduct reason;

7) Mr Carter contends that the procedural irregularity on the part of the Employment Tribunal chairman severely prejudiced his chances of showing, on the balance of probabilities, that the principal reason for his dismissal was a trade union reason.

21. What all those points come down to is the point Mr Clancy made briefly to me this morning, that this case falls within Section 152 of the 1992 Act and therefore amounts to an automatically unfair dismissal. Mr Clancy said that Mr Carter was using the essential services of his trade union in obtaining and following advice and he was dismissed for doing that. So he said that that should come into the provisions of Section 152, and that amounts to an error of law on the part of the Employment Tribunal. If Mr Clancy were right about that, or even arguably right, this would be an appropriate case to come to this court. However, I do not think he is right when one looks at the wording of Section 152. Section 152 of the 1992 Act reads:

"(1) For the purposes of Part X of the Employment Rights Act 1996 (Unfair Dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it, or if more than one, the principal reason was that the employee -

(a) was or proposed to become a member of an independent trade union or

(b) had taken part or proposed to take part in the activities of an independent trade union at an appropriate time or

(c) was not a member of any trade union or of a particular trade union or of one of a number of particular trade unions or had refused or proposed to refuse to become or remain a member."

22. In my judgment, this case does not fall within (a), (b) or (c). There was no question of there being any membership of a union issue between the college and Mr Carter. He was a member of a union, that is UNISON, and he was not dismissed because he was a member; he was dismissed because of his conduct in relation to his contractual duties. Secondly, he was not dismissed for taking part in the activities of the union at an appropriate time. That means activities, for example, during working hours and union activities means helping in the organisation of labour. There is nothing in Section 152 (1) (b) that would make it unfair automatically for an employer to dismiss an employee for following union advice.
23. That is not the same as taking part in the activities of a union. Taking part in the activities means doing something in relation to the union's affairs in the workplace. This was a matter of union advice, which is commonly the case in relation to a dispute that Mr Carter had with his employers in relation to his contract.
24. I would reject Mr Clancy's submission that there was an error of law by the tribunal in refusing to treat this as a dismissal on grounds related to union membership or activities.
25. Mr Clancy and his wife, who also accompanied him, informed me of other facts which reveal a sad state of affairs following Mr Carter's premature death from cancer. I have heard details of the financial difficulties there have been as a result of the knock on effect of his dismissal on his pension entitlement. I have also heard of the financial difficulties of his widow. There is nothing that I am entitled to do about that in relation to this appeal. They are matters outside the remit of the Employment Tribunal and of this court. I am sorry to hear of these difficulties, but I have to say quite clearly that there is nothing I am able to do about them in deciding whether or not there should be permission to appeal.
26. In my view, I would be doing Mrs Carter a disservice by giving permission to appeal in a case in which, in my judgment, she is likely to lose since, as I have already indicated, if she lost the appeal the college would be entitled to seek against her an order for the costs they had incurred in contesting it. That would lead to a further deterioration of her financial position. For those reasons I do not think that this is an appropriate case for granting permission to appeal. The application is refused.
Order: Application refused