United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 219_93_1803

Appeal No. EAT/219/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18 March 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR K M HACK JP

MS D WARWICK

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MRS M MAXWELL          APPELLANT

SOUTHPORT COLLEGE          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT): This is an Appeal by Mrs Maxwell against a decision of the Industrial Tribunal held at Liverpool on the 1st and 2nd December 1992. The Tribunal unanimously rejected Mrs. Maxwell's complaint of sex discrimination against her former employers, Southport College.

Mrs Maxwell was a law lecturer at the College. She ran series of courses for people studying for the examinations of the Institute of Legal Executives. She made a complaint of sex discrimination and of victimisation by Notice of Application dated the 4th July 1992. Her allegations were denied by the College in the Notice of Appearance on the 3rd August 1992. The Tribunal decided the complaint in favour of the College for reasons which were notified to the parties on the 4th January 1993. Mrs Maxwell wished to appeal. She did so by a Notice dated the 9th February 1993. She was notified that the Case would be set down at this Tribunal for a Preliminary Hearing to determine whether or not she had a arguable point of law on the Appeal.

The Employment Appeal Tribunal only has jurisdiction to hear Appeals from an Industrial Tribunal on grounds of an error of law in its decision or in the conduct of the proceedings. There is no right of Appeal on fact and, therefore, no jurisdiction in this Tribunal to review findings of fact unless there has been an error of law. Mrs Maxwell, who was aware that the normal procedure is for skeleton arguments to be submitted in advance of an Hearing, sent to this Tribunal a letter on the 3rd March 1994 stating the basis of her argument against the decision of the Liverpool Industrial Tribunal. She set out in that letter five points, which I shall refer to in a moment.

During the Hearing of the Appeal Mrs Maxwell informed us that there are on foot other proceedings, of which this Tribunal was not aware. Her other proceedings are, first, an application for Judicial Review and secondly, further proceedings in the Industrial Tribunal for unfair dismissal. We are not concerned at present with the proceedings for unfair dismissal. When we asked Mrs Maxwell for details of her Judicial Review proceedings it became apparent that they interact with this Appeal in a manner which prevents us from dealing finally with this Appeal today. We have not been shown any papers concerned with the Judicial Review proceedings. We have been told by Mrs Maxwell that she has started Judicial Review proceedings with the leave of Mr Justice Schiemann in the High Court.

Leave was granted last October. Her proceedings are to quash the decision of the Industrial Tribunal in this case on the ground of bias on the part of the Chairman and one of the lay members. The Chairman was Mr Lloyd Parry, the day member Mr Capper. Mrs Maxwell informed us that she has sworn an affidavit in those proceedings, giving particulars of bias. Mr. Lloyd Parry has sworn an affidavit. But Mr Capper has not yet sworn or provided an affidavit. That is the extent of our knowledge about the Judicial Review proceedings.

Mrs Maxwell did not bring with her any of the papers relating to those proceedings. We pointed out to her that there is no mention of any allegation of bias against the Chairman or a member of the Tribunal in her detailed Notice of Appeal which runs to three pages and eight paragraphs. There is no mention of this ground of complaint in the recent letter of the 3rd March which sets out the skeleton argument. The Judicial Review proceedings are clearly relevant to this Appeal. If the Judicial Review proceedings are pursued successfully the likelihood is that an order would be made quashing the decision of the Tribunal. If the decision of the Tribunal is quashed there is nothing to appeal against and the appeal would fall with the decision. If, however, the proceedings for Judicial Review fail, the decision would still stand and be subject to appeal. We pointed out to Mrs Maxwell that a ground of appeal on error of law may include a complaint against the conduct of the Tribunal, including its composition and alleged bias.

The effect of the judicial review proceedings is that we cannot proceed to make a final decision in relation to the Appeal without first knowing exactly what the position is in the Judicial Review proceedings. For that purpose we need to see the papers. We therefore propose to adjourn this Appeal for Mrs Maxwell to get together all the papers relevant to the Judicial Review proceedings. When she has got them together those papers should be copied and a set of the copied documents submitted to the Tribunal. A set of copy documents should be sent to Southport College, if they do not already have the documents.

Next, as Mrs Maxwell may wish to raise the bias point on the Appeal as well as, or instead of the Judicial Review proceedings, she may need leave to amend her notice of appeal. We could not allow the point to be raised without an application for leave and without giving Southport College an opportunity to resist an application, if it is made. If an application for leave is made, it will be necessary for Mrs Maxwell to swear another affidavit on this Appeal explaining the point which she wishes to raise on the Appeal, and also explaining the reasons why this point was not raised in the original Notice of Appeal or in the letter of skeleton argument of the 3rd March. If Southport College oppose the application for leave to raise this point, there will have to be a Hearing to decide whether or not the point can be raised. If leave were granted it would be necessary for the affidavit Mrs Maxwell has sworn and for the amended Notice of Appeal to be sent to Mr Lloyd Parry and Mr Capper for them to comment on it.

We therefore propose to adjourn the preliminary hearing for Mrs Maxwell to decide whether she wishes to apply for leave, and if she does, to take the steps which mentioned. The matter will then be put down for hearing on the Application For Leave. In view of the time already spent on hearing this Appeal so far, it would be convenient for that application to be heard by this Tribunal with the same composition as today. Otherwise new members of the Tribunal would have to start from the beginning. So, we adjourn the preliminary hearing, pending an Application for Leave to amend.

There is two other matters that we wish to mention. The first is the question of costs. Mrs Maxwell was accompanied by her husband who expressed a concern, which was shared by Mrs Maxwell, about the costs. Both realise that if the Judicial Review proceedings are pursued, they may be costly. If they are unsuccessful, an order for costs of the High Court proceedings may be made against Mrs Maxwell. It was suggested by Mr Maxwell that that risk might not exist if these same matters of bias were ventilated on this Appeal.

It is true that a different rule as to costs applies in this Tribunal. The costs do not automatically follow the event. They are not automatically ordered against the unsuccessful appellant. However, the Tribunal does have power to order costs against an appellant who has been frivolous or vexatious or has raised unnecessary proceedings or has acted unreasonably in bringing proceedings or in the conduct of them. It may be that if allegations of bias are raised on this appeal, in which the Southport College is the respondent, and if they are unsuccessful, the College may seek an order for costs against Mrs Maxwell.

The second point is that we have heard over an hour and a half of argument from Mrs Maxwell on her grounds of appeal, other than the bias point. So far we have been unable to find in her grounds of appeal any arguable error of law. Her disputes on the points raised in her letter of the 3rd March are either attempts to dispute findings of fact by the Tribunal or are attempts to raise at the appeal Tribunal matters and events which occurred after the Hearing by the Industrial Tribunal and, could not be relevant to any error of law which might vitiate the decision of the Tribunal.

Mrs Maxwell made a point that there had been a false document submitted in evidence which showed that the Tribunal had been mislead into making a finding of fact in relation to the period of secondment by Mr MacDonald. The Industrial Tribunal stated as a finding of fact that Mr Philip MacDonald had been on a period of secondment from the 1st September 1989. That date accorded with the date given in a letter on page 15 of the bundle, sent by the Director of Education to Mr MacDonald. Mrs Maxwell submitted that the letter, dated the 10th August 1989, was a false document. We believe she is alleging that it was a forged or fabricated document. She pointed out another document on page 14 from Mr Ormsby certifying that the date on which secondment started was January 1989, not September. That document, we are told, was before the Tribunal. The Tribunal stated its finding of fact. The attempt of Mrs Maxwell on this ground is to persuade this Tribunal to find a different fact. That is not a ground of law.

Her second point was that the Chairman erred in law in stating that an employer had the right to alter the terms of the contract, which at common law would be implied to continue on the same terms and conditions, a contract protected by Statute and EC Directives. We have been unable to find in the decision any statement of the Chairman to the effect alleged.

Thirdly, a complaint is made that the Tribunal misinterpreted written evidence relevant to the victimisation claim; that is, as to when the College first knew of the date in which Mrs Maxwell would be bringing a complaint under the Sex Discrimination Act. The Tribunal on this point made a clear finding in paragraph 3L of their decision, and also in the concluding paragraph 5C, that the College did not know of any intention of making a complaint of sex discrimination until the 22nd June 1992. Mrs Maxwell disputes that date. She says that it was in May she relies on what is stated in the Notice of Appearance, paragraph 2 of page 27 of the bundle. Again this is an attempt to persuade this Appeal Tribunal to come a different decision on the facts. It is clear from the decision of the Industrial Tribunal, and paragraph 3L, that the date in May, referred to in the Notice of Appearance, was the date of a letter. The letter was dated the 20th May. The Tribunal had seen the letter. We have not seen it. The Tribunal said that in the letter Mrs Maxwell referred to Statute, Regulations and an EC Directive, but nothing related to sex discrimination. We are at the disadvantage of not having seen the letter, but it appears to us that the ground on which Mrs Maxwell is seeking to rely is a point of fact on which the Tribunal were guided by contemporaneous evidence in the form of the letter of the 20th May. If this had been the only ground pursued it would not amount to a ground of law on which we had the power to interfere with the decision of the Tribunal.

The other matters raised are complaints about what has happened since. Mrs Maxwell refers to a bundle of documents which she has produced, separate from the Appeal Tribunal bundle, showing that students and herself were effectively forced out of the College. That is a matter on which she wishes to give oral evidence to us today. Those events may form the ground of another complaint, they may be the basis of her new proceedings for unfair dismissal against the College. They cannot be relevant to the question whether there is an error of law in the decision notified to the parties in January 1993.

We have mentioned those points so that Mrs Maxwell can consider the position between now and any further Hearing of this matter. The point we wish to emphasise to Mrs Maxwell is that apart from the bias point, about which we know nothing (other than the allegations made in the Judicial Review proceedings related to us by Mrs Maxwell) there would appear to be no point of law in any of the matters which Mrs Maxwell has raised in her Notice of Appeal and skeleton argument.

On that basis the Hearing of this Appeal is adjourned, pending an application for leave to amend the Notice of Appeal.