England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge McMullen QC, sitting alone
Case No: UKEATPA/0224/11/ZT

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/01/2013

Lord Justice Rimer :

1. This is a renewed application for permission to appeal, Mummery LJ having on 18 October 2012, on the papers, refused permission on the grounds that an appeal on the basis of the amended grounds of appeal attached to the appellant's notice had no real prospect of success.
2. The applicant is Keith Kennaugh. The respondent is David Lloyd Jones, who trades as Cheshire Tree Surgeons. The applicant, who had been employed by the respondent, brought employment tribunal proceedings against him as long ago as 2 April 2005. The course of the proceedings appears to have been long and tortuous and to have included more than one visit to the Employment Appeal Tribunal ('the EAT'). The present proposed appeal is against an order of the EAT sealed on 12 April 2012 by which His Honour Judge McMullen QC, sitting alone, dismissed the applicant's application under rule 3(10) of the Employment Appeal Tribunal Rules 1993 (as amended), directed that no further action be taken on his appeal and dismissed the appeal. The applicant's appellant's notice to this court (of which I have only an incomplete copy) is late, as those filed by self-represented litigants usually are, and I have been provided with no evidence explaining why time should be extended (I do not have that part of the appellant's notice which normally seeks to explain any delay). The overrun is something over two weeks. I shall, however, consider first the merits of the proposed application.
3. The applicant's unsuccessful challenge to the EAT was against the judgment of an employment tribunal, sent with reasons to the parties on an unidentified date in or after January 2011. The hearing had been on 7 and 8 December 2010 and 7 January 2011. The presiding judge was Employment Judge Ryan. Unusually, the title page of the judgment and reasons does not identify any wing members but there is no question, as the applicant confirmed to me, that Judge Ryan was presiding over a tribunal of three. The tribunal's judgment explained that the only extant claim with which it had to deal was the applicant's claim that he had been unfairly constructively dismissed, all his other claims having in the meantime been finally disposed of. The issue as to constructive dismissal or not (and, if yes, whether such dismissal was unfair) had been remitted to the tribunal by an order of the EAT dated 1 October 2009. Both parties represented themselves at the hearing. The tribunal's decision was that the applicant had not been dismissed and so his claim for unfair constructive dismissal was dismissed.
4. More particularly, the applicant's case before the tribunal was that the respondent had repudiated his employment contract by non-payment of remuneration that was due, which was said to be a breach of an express term of the contract and a breach of the implied term of trust and confidence; and had failed to deal properly with his grievances, said to be another breach of the same implied term.
5. The tribunal set out its findings of fact fully and carefully in the 42 sub-paragraphs of paragraph 2. They explained that the relationship between the parties was not an easy one. They explained, in paragraph 2.14, the payment arrangements that were variously in place during the employment. The tribunal said, in sub-paragraphs 2.19 and 2.20:

'2.19 As has been adjudicated upon already at the Tribunal the claimant was not always paid correctly and strictly in accordance with whichever of the 5 pay regimes listed above he was currently working under at any particular time. There were some shortfalls. Those shortfalls were the subject of other claims by the claimant and the respondent has admitted liability and/or voluntarily offered to pay for some or all of those specific examples. Overall however, the claimant believed that had the respondent managed the business better he would have earned more and this was the basis of his continuing sense of grievance. We find that the respondent, whilst he made errors in some of his calculations, was dealing with a difficult and ever changing situation in which the claimant's expectations exceeded the agreements that had been reached. The respondent did not deliberately mismanage his business so as to reduce the claimant's income (to do so would have damaged his own profit from the business). Both the claimant and respondent suggested various financial packages that would have been beneficial to either or both of them in good faith, each always seeking to maximise their personal gain. Notwithstanding the mathematical errors amounting to underpayments on certain limited occasions the respondent did not deliberately breach the terms of the agreements that had been reached with the claimant both as to working methods or the remuneration packages in force. The claimant however was not happy at his income and felt he could do better.

2.20 The claimant last carried out work for the respondent on 18 February 2005. By this stage of the relationship the claimant was only available to work for the respondent's clients on one day per week; this part-time availability was agreed between the parties. On 18^th February 2005 the bull bars on a vehicle that the claimant was using were damaged. At that time the remuneration package in force was the document at page 190 of the bundle which includes provision for operatives being responsible for damage to equipment in that the cost would be an overhead deducted from fees paid by clients before the calculation of the percentage commission or other wage payable to those operatives. That agreement expressly stated that the value of the job would be the figure net of any overheads such as damage or the cost of specialised equipment. Operatives were then to be paid out of the net value of the job.'

6. After setting out the law as to constructive dismissal, the tribunal applied it to the facts that it had found. In paragraph 4.2, it explained why, in the particular circumstances of the case, it found that the respondent's occasional errors in the payment of wages did not amount to fundamental breaches of the contract of employment, nor were calculated or likely to destroy or seriously damage the relationship between the parties. The tribunal concluded its reasoning in that paragraph by saying that:

'… It cannot be the case that any time an employer makes any error in the payment of wages there is a fundamental breach of contract entitling an employee to resign and claim constructive unfair dismissal, especially if the error is significantly contributed to by the employee.'

7. The tribunal then, in paragraph 4.3, rejected the applicant's case that the respondent had failed to deal appropriately with his grievances. It found that:

'… it is evident from the facts found that the respondent attempted on numerous occasions to convene a meeting and remained willing to meet with the claimant to, not only to discuss but also, resolve all of his issues up to and beyond the presentation of proceedings in the Employment Tribunal. The claimant would not engage. A failure to resolve a grievance is not necessarily culpable whereas an employer's failure to address grievances conscientiously may be. In this case the respondent did his best to address and to resolve the claimant's grievances; his conduct in this regard is not culpable.'

8. The tribunal then dealt in paragraph 4.4 with the applicant's complaint that the respondent did not and would not pay him unless and until the damage to the vehicle had been made good. The tribunal's finding was that the respondent regarded the damage to the vehicle as an issue that had to be resolved. After explaining that further, the tribunal said:

'… The respondent repeatedly requested information in support of the earnings claimed and at the same time wished to discuss the damage to the vehicle but did not make them contingent one on the other. As the claimant would not meet with the respondent and did not submit calculations and time sheets to support his vague claim for further monies, the respondent appropriately wished to meet with him and in those circumstances we do not know whether the respondent would have met any indebtedness apart from resolving the vehicle damage. They were both to be discussed at the same meeting. That is not the same as saying that the respondent would only pay wages if the vehicle was repaired. The respondent was unable to pay the claimed wages because he had no evidence on which to base a payment. We can only speculate as to whether, once a figure had been agreed upon, the respondent would then have held back monies but that situation did not arise. In fact as a result of the contractual agreement the team's payment, from which Mr Knott was to pay the claimant, could not be calculated without first knowing the cost of the vehicle repair or whether the claimant would honour his offer to repair or replace the bull bars personally.'

9. The tribunal concluded, in paragraph 4.5, that there was no fundamental breach either of any express or implied term in the contract: in particular, the respondent had not conducted himself in a manner calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence. The tribunal recorded, as had been found at an earlier tribunal hearing in 2009, that the claimant resigned his employment by presenting his ET1 on 6 April 2005 and found that 'there was no conduct on the part of the respondent amounting to a fundamental breach of contract that justified this decision.'
10. The applicant sought to appeal to the EAT against the tribunal's judgment. Appeals to the EAT against judgments of an employment tribunal lie only on alleged errors of law (see section 21 of the Employment Tribunals Act 1996), whereas the applicant's original notice of appeal was devoted to a challenge to the tribunal's findings of fact. His Honour Judge Richardson, at the EAT, concluded on the paper sift that the notice of appeal disclosed no reasonable grounds for bringing the appeal and made a ruling under rule 3(7) of the Employment Appeal Tribunal Rules 1993, as amended, the effect of which was that, subject to rule 3(8) and (10), no further action was to be taken on the notice of appeal. The applicant, as was his right, produced a fresh notice of appeal under rule 3(8).
11. The fresh notice came before the President, Langstaff J, who took the like view in relation to it as had Judge Richardson in relation to its predecessor. He noted that whilst it may be rare for the non-payment of wages not to amount to a repudiatory breach of contract, it is not impossible, and here the tribunal had explained in paragraphs 4.2 and 4.5 of its reasons why the breaches were not repudiatory. The applicant exercised his right under rule 3(10) to have an oral hearing at which he hoped to persuade a judge that he had raised grounds of appeal that merited going forward to a fully hearing on notice to the respondent. That hearing took place on 11 April 2012, before His Honour Judge McMullen QC. The applicant was present in person, but had the good fortune to be represented under the ELAAS scheme by Ms Laura Prince, a barrister experienced in employment law.
12. I shall return to that hearing, but note first that the applicant claims in the meantime to have produced another notice of appeal under rule 3.8, which the bundle index identifies as having been produced in November 2011 but which the applicant asserts the Registrar of the EAT rejected. An email to the applicant of 12 February 2012 from Martine Wymeron (an EAT Court Associate Team Leader) said in the third paragraph:

'With regards to your query about appealing the EAT's refusal to allow you to lodge fresh Notices of Appeal under Rule 3(8), you may raise this as a preliminary point at the outset of your hearing on Wednesday 11 April 2012. The Judge will be made aware, in advance of the hearing, of the correspondence concerning this matter.'

13. In the event, it appears that the matter of the rejection of the further notice of appeal was not raised with Judge McMullen at the hearing on 11 April 2012. There is no reason why it could not have been. The applicant was there, he could have instructed Ms Prince about it and she could have made representations to Judge McMullen about the applicant's wish to rely on grounds raised in the further notice of appeal. It is, however, apparent from Judge McMullen's judgment that, as the applicant accepts, Ms Prince made no representations to Judge McMullen in relation to the rejected notice of appeal. Judge McMullen confined his judgment to the case advanced by Ms Prince, which was based on what Judge McMullen described as her 'substantial skeleton argument' (which I have not seen), as supplemented by further instructions given to her by the applicant on the morning of the hearing. Judge McMullen then referred to the three points that Ms Prince had advanced.
14. The first point was to the effect that whereas the applicant's complaint against the respondent was that he had asserted that a number of incidents of short payment of his wages collectively amounted to a fundamental breach of the employment contract, the tribunal had not given proper consideration to the whole collection of such complaints. The judge rejected that assertion, saying that the tribunal's reasons showed that it had considered all the incidents complained of. He said that '[a]s Ms Prince very fairly accepted before me, decisions as to what is fundamental and what is minor are matters of fact and are for an Employment Tribunal and not the EAT. This ground cannot succeed.'
15. The second point argued by Ms Prince related to the applicant's complaint that his grievances had not been dealt with. Judge McMullen explained in paragraphs 13 and 14 of his judgment the nature of the applicant's criticism in this respect and rejected it as hopeless. The fatal problem in his path was the tribunal's finding of fact that the applicant had himself failed to engage with the respondent's attempts on numerous occasions to convene a meeting to deal with and discuss the grievances.
16. The third point advanced by Ms Prince was that the tribunal's decision was completely flawed as containing findings inconsistent with previous findings. The complaint was based on an allegation of perversity. Judge McMullen reminded himself of the high threshold that a complainant asserting perversity needs to surmount and expressed his view that it was plain that the tribunal's decision was firmly grounded in fact. The case came nowhere close to what is required for a perversity challenge.
17. Before this court, the applicant sought permission first of all on the basis that the registrar of the EAT was wrong to reject his third notice of appeal; and that the Registrar also erred in failing to place it 'before the court as reasonably requested by the appellant in good time' and failed to pass it to the ELAAS service. As a result of all that, the hearing before Judge McMullen simply proceeded, as the applicant puts it, 'on the un-amended grounds'. For good measure, the applicant added that the 'Registrar has an appearance of bias which has adversely affected the claimant's appeal'. The applicant also informed me that he regarded the employment tribunal has having been biased against him. That was, as I followed it, apparently because the tribunal generally preferred the respondent's evidence to his.
18. Assertions by self-represented litigants of judicial bias are tediously common. They are rarely founded on anything that might be said to amount to supportive evidence. In this case, no evidence has been put before the court of any judicial bias by anyone; there is merely a complaint that the proceedings did not go the applicant's way. With respect, his assertions of bias should not have been made.
19. The applicant's complaint about the matter of his rejected notice of appeal is anyway not, in my view, a matter that he is entitled to raise in this court as a ground of appeal. If he was dissatisfied with the Registrar's treatment of his notice of appeal, he could have sought to appeal against that decision to a judge of the EAT (see rule 21 of the EAT Rules 1993). Alternatively, and rather more obviously and practically, he could and should have taken the opportunity to raise the points in that notice with Judge McMullen at the hearing of his rule 3(10) application on 11 April 2012. In the event, he did neither of those things. If he felt that Ms Prince was not making the points in this respect that he considered needed to be made, there was nothing to stop him asking Judge McMullen if he could add to her submissions himself. He did not take that opportunity either. No appeal lies to the Court of Appeal against decisions of the Registrar of the EAT; and Judge McMullen cannot be criticised before the Court of Appeal for not dealing with points upon which he was not asked to adjudicate. There is therefore no basis upon which this court can or should consider giving permission on the basis of the case sought to be made in the third notice of appeal.
20. In the circumstances, the only points that the applicant could legitimately advance before this court in support of his bid for permission to appeal were as to why Judge McMullen's reasoning was said to have been wrong in law on the discrete points that were advanced to him by Ms Prince. The applicant's submissions, in the course of his courteous address to me at the oral hearing, did not however attempt to focus on any reason why Judge McMullen's conclusions on the three matters argued before him were said to have been wrong in law. They focused instead on an attempt to show that the errors in the payment of his wages were not down to any fault on his own part but were exclusively down to shortcomings on the respondent's part, and he referred me to documents with a view to making good his case in that respect. He even went so far as to assert that the evidence before the tribunal showed that the respondent was defrauding him. His argument was devoted to showing that the tribunal had made basic errors of fact in coming to the conclusions that it did.
21. There is, however, a fundamental problem in the applicant's path in seeking to advance arguments of this nature. That is that it is the task of the employment tribunal to decide the facts; and once it has done so, that is ordinarily the end of the factual inquiry. If the tribunal is said to have fallen into arguable error on the law, an appeal against its decision to the EAT is possible. There is, however, no appeal to the EAT against the tribunal's findings of fact. If, in the exceptional case, the tribunal's findings of fact are perverse (either because there was no evidence to support them, or because they were findings that no reasonable tribunal could properly have made), then that will be an error of law that can be the subject of an appeal. But, as Judge McMullen pointed out, proof of such a case requires the surmounting of a high threshold; and nothing that the applicant advanced to me satisfies me that there is here a case for saying that the tribunal's findings of fact were perverse. He showed me his slant on the facts: but no doubt the respondent had his own, different slant on them, and the tribunal heard the evidence from both. Nor did the applicant satisfy me that there was any arguable error of law in Judge McMullen's disposition of the only grounds put before him as to why the tribunal went wrong.
22. I recognise that the applicant feels very strongly about the end outcome of this very protracted case. He plainly feels that an injustice has been done to him. Following the hearing, he wrote to me on 7 December 2012, and his letter included the following:

'In addition, I have critical feedback about my experiences through the justice system, and I think that you are probably the best person to deliver that feedback to. It is a simple case, yet it has taken over seven and a half years to get where we are. I can see what has gone wrong in these proceedings, why it went wrong, and practical mechanisms that could have prevented that.

I don't know what to do now. I can see that the system is in need of some reform, and you said something at the hearing which suggested you can as well. Perhaps we could discuss this: you and I are looking at the system from opposite ends, so between us we should have an excellent perspective on the problem.

There is an argument for having that discussion at an appeal hearing, but if that is not happening, then what do you suggest that I should do?

I have written to MP's and the Ministry about it, but they are useless. It seems to be assumed that I am critical of the system because the system has gone against me. I do not yet know if you have gone against me, so you should not make that assumption. If you cannot consider my feedback, then can you tell me who will?'

23. The applicant followed that up with a further letter to me on 12 December 2012. The essence of that was to ask for permission to amend his appellant's notice to ask 'for permission to appeal against all the decisions that have discarded the context'. I understand the applicant thereby to mean that the claimed error of Judge McMullen's judgment can only be understood against a proper appreciation of all the material facts, whereas 'significant matters that present the context have been discarded along the way.'
24. As appears from what I have said, and also say below, I am afraid that I am 'against' the applicant, in that I have concluded that this is not a case that merits permission to appeal. As regards the wider points raised in his first letter, I do not know the history of these proceedings – the relatively modest material put before me has spared me from it - and so I can express no view on whether the case was in fact the 'simple' one that the applicant asserts. Nor do I propose to take up the applicant's invitation to engage in a dialogue with him about 'the system', which is no part of my function as a judge.
25. My only task is to rule on the application that he has brought before me. That now includes an application to amend the appellant's notice as described in paragraph 23 above. I have no hesitation in refusing that. The application is, with respect, flawed by its self-evident imprecision; and, insofar as it is (as I understand it to be) asking for a general review of the tribunal's findings of fact, it is misconceived in law for the reasons explained in paragraph 21 above. As to the application that was originally before me, my decision is to refuse to extend the applicant's time for appealing (no evidence as to why time should be extended having been shown to me) and anyway to refuse him permission to appeal on the ground that, as Mummery LJ said on the papers, an appeal would have no real prospect of success.