United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 1031_93_2505

Appeal No. EAT/1031/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 25 May 1994

Before

THE HONOURABLE MR JUSTICE MORISON

MR A C BLYGHTON

MISS C HOLROYD

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MR S J CARTWRIGHT          APPELLANT

THE PATENT OFFICE          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

P R E L I M I N A R Y H E A R I N G

Revised


 


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APPEARANCES

For the Appellant NO ATTENDANCE BY THE           APPELLANT


 


MR JUSTICE MORISON: Until his dismissal leading to the termination of his employment as from 30 April 1992, Mr Cartwright had been employed by the Patent Office in central London as a patent examiner. As from February 13 1991 he became a senior patent examiner. It was a condition of his contract of employment that he was subject to a mobility provision: namely a liability to serve in any part of the UK or overseas.

In February 1988 staff were notified that the Patent Office would be moving to Newport in South Wales. It was essential that there should be sufficient senior examiners in the new Office. Such personnel take 5 years to train and are not easily replaceable. About 50 examiners were prepared to volunteer to move to the new location. The minimum needed to achieve a workable complement was somewhere between 120 and 150. Therefore the Patent Office decided that they should implement their mobility provision and a system was set up to that effect. That system involved a consideration in each case as to whether any person would find it exceptionally difficult to move due to unavoidable personal or domestic circumstances

"....... which require your continued presence during the working week at your present home for the foreseeable future."

In such a case the department indicated that it might exercise its discretion to waive the obligation contained in the mobility clause in that individual's case. All such persons were to contact the Patent Office Welfare Officer and disclose to her their circumstances. The final decision was to be taken by the controller, in the presence of his deputy, having considered the representations made to the Welfare Unit.

On October 2 1990 Mr Cartwright applied for his mobility clause to be waived, in accordance with the procedure, on two grounds: first, his difficulty in disposing of his property because he shared a half interest in it with his partner and could not dispose of that half share; and secondly, the poor state of health of his father and grandmother.

On January 11 1991 he was told that it was not thought that he had a strong enough case for waiver but that he could make further representations if he wished and he ultimately had a right of appeal to the Permanent Secretary. He exercised his right of appeal but it was turned down.

Accordingly Mr Cartwright was given a posting notice saying that he was to commence work in Newport no later than 2 December 1991. After taking a number of points about the terms of that notice, which the Industrial Tribunal described as being of no substance, Mr Cartwright turned up for work in London on December 2 1991, thereby ignoring the notice. He was told there was no work for him there and invited to go to Newport and report for duty on December 13. He did not do so and was 'charged' with gross misconduct for refusing to obey a lawful order.

The disciplinary procedures were correctly followed and he had a disciplinary hearing before the Deputy on February 6 1992. The charge was found proved and he was dismissed with effect from 30 April 1992 and unsuccessfully exercised his right of appeal to the Civil Service Board.

By an IT1 dated June 28, but presented to an Industrial Tribunal on July 28 1992 just before the time limit expired, Mr Cartwright complained of unfair dismissal and sex discrimination. He accompanied his IT1 with a 23 page document in support of his case setting out in detail of what he was complaining. His case on unfair dismissal was essentially that the Patent Office was unreasonable in requiring him to work in Wales and for dismissing him when he refused to do so. He took a number of other points, including a claim that by asking for volunteers the Department were estopped from imposing compulsory transfers.

He alleged that the Department had treated a female refusnik with considerably less severity than he was treated in that she was demoted and found another post in London whereas he was dismissed. He alleged that this extreme discrepancy in treatment between his case and hers arose solely from discrimination based on gender.

The person with whom he compared himself was described by the Industrial Tribunal as Mrs Y. Subsequently, Mr Cartwright discovered another potential comparator, namely, a Miss X, who was a refusnik who also was not dismissed and he also compared his case to hers.

The case eventually came on for hearing before an Industrial Tribunal held at London (North) and extended over four days during the last week in July 1993. Their unanimous decision dismissing Mr Cartwright's complaints was entered in the register on September 3 1993.

It will be apparent that the Industrial Tribunal were faced with a difficult problem. The personal circumstances of the two women had been disclosed to the Welfare Officer. In the case of Miss X her statements contained personal statements about her health which she was entitled to have treated as confidential; on the other hand Mr Cartwright wanted to look at what she had said so that he could compare her case with his. There was thus, a familiar tension between the rights of Miss X to have her representations kept in confidence, the right of Mr Cartwright to a fair hearing and the public interest in justice being done. A summary of what she had said was prepared and the Industrial Tribunal ordered that that summary should be disclosed to Mr Cartwright. The Patent Office were obviously concerned about this order and it was made clear that in the light of Mr Cartwright's insistence on seeing it, he had forfeited any chance he might have had of a job in Newport. That remark was considered by the Industrial Tribunal to be a threat and a possible contempt of court. However, they concluded they could not deal with a contempt and simply noted their displeasure in paragraph 22 of their decision.

Having considered the difference between her case and his the Industrial Tribunal concluded that any difference in treatment was not due to a difference in sex because Miss X's grounds for deferral were so dissimilar to Mr Cartwright's that the two could not be compared [paragraph 26 of their Decision].

As for Mrs Y the Industrial Tribunal said this:

"27 So far as Mrs Y is concerned it is clear that she was treated differently in relation to the same charge as Mr Cartwright. Was any real element of that differential due to the fact that she was a woman? We have come to the conclusion it was not. The grounds on which she was demoted as opposed to being dismissed was because the Respondents state there were mitigating factors and strong mitigating factors. We are not satisfied that had Mr Cartwright the same mitigating factors he would have been treated any differently."

In relation to the complaint of unfair dismissal, the Industrial Tribunal said that the dismissal for gross misconduct was within the band of reasonable responses of an employer who was acting fairly. They set out the matters on which they relied in paragraph 30 of their decision.

By a Notice of Appeal, containing 6 pages of grounds, Mr Cartwright wishes to appeal against the Industrial Tribunal's Decision. This he can only do if the Employment Appeal Tribunal is satisfied that there are truly arguable points of law. The jurisdiction of this court is derived from statute and when sitting as an appellate body its jurisdiction is confined to a consideration of points of law. The purpose of this hearing was to determine whether there are any arguable points of law. As was his right Mr Cartwright has not attended personally but he has submitted a supplemental submission which we have also taken into account.

During the course of the Industrial Tribunal proceedings Mr Cartwright applied for a number of witness orders. During that interlocutory hearing the representative from the Treasury Solicitor purported to act on behalf of the potential witnesses against whom the subpoenas were sought, including the Miss X, Mrs Y (who gave evidence voluntarily for the appellant), and the Permanent Secretary. Mr Cartwright says that the Industrial Tribunal should not have refused to grant the witness order against Miss X and that the Treasury Solicitor had no instructions to resist the making of an order on her behalf. Whether such an order should or should not have been made is a matter entirely within the discretion of the Industrial Tribunal who are hearing the case. The exercise of that discretion is not one with which we can, or should, interfere unless we are satisfied that in reaching its decision the Industrial Tribunal has either misdirected itself or acted perversely. We see no grounds for thinking that the decision was other than appropriate. It is not for a party simply to question the authority of solicitors to act on behalf of a person. There is no basis for thinking that the solicitor or barrister were acting without instructions; it would be quite usual, in our experience, for the Treasury Solicitor to represent any senior official within the Department concerned and any other employee whose interests were affected during legal proceedings. Mr Cartwright says that if the Treasury Solicitor cannot show that he received instructions from Miss X then he clearly acted improperly in passing himself off as representing her. On the contrary, in our view, unless Mr Cartwright can show some solid basis for suggesting that the Treasury Solicitor was acting without authority it is quite unacceptable that he should make accusations of impropriety against someone, who for this purpose has duties as an officer of the court. Mr Cartwright may feel strongly about the way he perceives himself to have been treated; that gives him no excuse for making wild allegations.

He further accuses the Treasury Solicitor of suppressing a letter from Miss X which he says casts a different light on her case and which falsifies the validity of the summary with which he had been provided. We can see no merit in this point. The letter adds little, if anything, to what Miss X had put forward as her real personal reasons for not moving.

He complains that he was only shown a summary and that the Treasury Solicitor indicated that if he had been represented by counsel then his barrister would have been shown the whole document. He says that this is unfair as it discriminates against the unrepresented. We think there is nothing in this point. As we have already indicated there is a tension between the various interests which must be resolved as best as may be. It is rare for documents to be disclosed to lawyers on the basis that they may not be shown to their client, and some lawyers may properly refuse to accept disclosure on that basis. The fact that this might have been done in the present case, had Mr Cartwright been represented, does not give rise to any criticism of the way it was actually handled. We do not accept that he was in any way disadvantaged by being given a summary which was removed from him every evening. He had enough information to enable him to present his case on discrimination by reference to the case of Miss X, and his case would have been no better and no worse if he had been given the original letter and the subsequent letter which he says was suppressed. In truth, it appears to us quite clear that there never was any merit in his claim for discrimination. Each case for release from the mobility clause was bound to be different because it was so personal. Comparing the precise details of one case against another was not going to make a case for sex discrimination.

Finally Mr Cartwright criticises the Industrial Tribunal for the way it dealt with Mrs Y. He says that she was happy to be demoted as long as she stayed in London. She was demoted and stayed. He says she got what she wanted and therefore the Industrial Tribunal should not have described the demotion in her case as a punishment. We think that Mr Cartwright ignores the reality. Mrs Y would have preferred to stay in London in her old grade if that were possible. She was happy to trade demotion, which was a form of punishment, for moving to Wales. The reason for the difference in her treatment and his were the mitigating factors which are set out in paragraph 27, which applied in her case. The Industrial Tribunal addressed itself to Mr Cartwright's point in paragraph 30 of its Decision and we can see no point of law raised in this or any of the other points which he has made.

Accordingly as there is no arguable point of law disclosed in the papers before us we dismiss the appeal.