United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 812_96_1110

Appeal No. EAT/812/96

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 11th October 1996

THE RIGHT HONOURABLE LORD JUSTICE MUMMERY

(IN CHAMBERS)

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MRS B LEVEZ          APPELLANT

T H JENNINGS (HARLOW POOLS) LTD          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised

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APPEARANCES

For the Appellant

MONICA CARRS FRISK

Counsel Equal Opportunities Commission

Overseas House, Quay Street

MANCHESTER M3 3HN

For the Respondent

Ms GENEVRA CAWS QC

The Solicitor

Birmingham City Council

11-14 Cannon Street

BIRMINGHAM B2 5EN

MR C VADJA (Counsel)Queen Anne's Chambers

28 Broadway

LONDON SW1H 9JS

LORD JUSTICE MUMMERY This is an unusual application. The Applicants wish to be joined as parties to these proceedings for the sole purpose of obtaining leave to appeal and then appealing to the Court of Appeal from an order of the Employment Appeal Tribunal referring certain questions to the European Court of Justice for a preliminary ruling in accordance with Article 177 of the Treaty of Rome and staying all further proceedings in this matter until the Court of Justice has given its rulings on the questions or until further order. That order was made on 14th August 1996 following a judgment delivered on 24th June 1996.

As appears from that judgment, there was disagreement between the President of the Appeal Tribunal and the lay members on the question of the compatibility of S.2(5) of the Equal Pay Act 1970 with Article 119 of the Treaty and Articles 2 and 6 of the Equal Pay Directive. In the light of that disagreement, the members of the Tribunal agreed that it was necessary to refer a question on that matter to theEuropean Court. There is no appeal against the order: Mrs Levez will not appeal because she submitted that a reference on that question should be made unless the Appeal Tribunal could, with complete confidence, resolve the issue in her favour. There will be no appeal by the Respondents, former employers of Mrs Levez, because, as explained in the judgment, they have made a decision not to take any further part in the proceedings. That decision led the Appeal Tribunal to adjourn the first hearing of Mrs Levez's appeal so that the Court could request the Attorney General to appoint an amicus to assist the Tribunal in coming to a decision on this question. An amicus was appointed and advanced the arguments summarised in the decision. It is common ground, however, that an amicus has no standing to appeal against an order made in the proceedings. As matters stand, therefore, the Appeal Tribunal's order of 14th August 1996 will not be reversed or varied on an appeal.

This is a matter of concern to the Applicants who are already parties to other proceedings in which the question referred to in the order of 14th August 1996 has been unanimously resolved in their favour by a differently constituted Tribunal. Those other proceedings are appeal numbers EAT/5/96 and EAT/6/96 - Miss D Fletcher & Others v. Midland Bank plc and Mrs Preston & Others v. Wolverhampton Health Care NHS Trust, Secretary of State for Health and Others. In the judgment in that case the Appeal Tribunal, consisting of the President and two different lay members, unanimously rejected the submission made on behalf of part-time workers in proceedings against employers and former employers, that the two-year limit on backdating of awards under the Equal Pay Act 1970 was incompatible with Community law. The unsuccessful part-time workers have appealed against that judgment and the appeals are due to be heard by the Court of Appeal on 2nd December 1996. On the appeal it will no doubt be argued by the part-time workers that the Employment Appeal Tribunal was wrong to reject the submissions made on their behalf that there should be a reference to the European Court on a number of questions, including the point on S.2(5). It will be open to the part-time workers to argue that the Court of Appeal ought to await the ruling of the European Court of Justice on the reference made in Mrs Levez's case.

This prospect has prompted the Applicants, who are all respondents to the proceedings by the part-time workers, to make this application. On 18th September 1996 the solicitor to the Birmingham City Council acting also as agent for other Local Authorities, wrote to the Appeal Tribunal saying that he was instructed to make an application on their behalf to be joined in the proceedings brought by Mrs Levez against T H Jennings. The notice of application had attached to it a schedule which lists those who wish to be joined as parties and to apply for leave to the Court of Appeal against the order making the reference. The parties consist of Birmingham City Council and five other local authorities, who are represented by Ms Genevra Caws QC and Mr Tim Kerr; Midland Bank plc and Electricity Companies represented by Mr Jason Coppel and the Secretaries of State for Education and Employment and for Health, who are represented by Mr Christopher Vadja.

Their application is opposed by Mrs Levez, who is instructed by Miss Monica Carrs Frisk, instructed by the Equal Opportunities Commission.

The part-time workers do not wish to be left out of the application. They are represented by Miss Jane McNeil who seeks leave to be heard on the application. She opposes the application for joinder and for the grant of leave to appeal and, as a position of last resort, seeks to be joined in the appeal along with the Applicants, so that they are able to appeal any decision joining the applicants and have the opportunity to take part in any argument in the Court of Appeal in the case of Mrs Levez. They make it clear that, if joined, they would oppose the Applicants' application for leave to appeal.

As if the position were not complicated enough, there have been some recent developments which may have an effect on the disposal of this application:-

which may have an effect on the disposal of this application:-

(1) It has come to light that a reference for a preliminary ruling has been made to the European Court of Justice by the Order of the Office of the Industrial Tribunal in Northern Ireland. That reference was made by order of 9th July 1996 in the case of Mrs Mary Maggorian and Anr v. Eastern Health and Social Services Board. The second question which has been referred for a ruling is framed as follows -

"Whether the relevant national legislation restricts back-dating entitlement in the event of a successful claim to a period of two years prior to the date on which the claim was made, does this amount to the denial of an effective remedy under Community Law and is the Industrial Tribunal obliged to disregard such provision in domestic law if it feels it necessary to do so?"

(2) I ceased to be President of the Appeal Tribunal on 30th September 1996 and therefore also ceased to be a judge of the Tribunal. The question therefore arises whether I can deal with this application, even though all concerned are agreed that I should deal with it.

In these circumstances, two main questions arise for decision.

(1) Do I have jurisdiction to make the order for joinder of the applicants in the proceedings brought by Mrs Levez against T H Jennings; and, if so,

(2) Ought I to exercise the discretion to make an order for joinder and to grant leave to appeal?

For the following reasons I have decided that I do have jurisdiction to make the joinder order but that I should exercise my discretion to decline to do so. I informed the counsel for the parties on 14th October that the application for joinder was refused. Subject to any written submissions received within 14 days from the handing down of this judgment, I propose to order that the costs of the application incurred by Mrs Levez be paid by the Applicants, but that there be no order for costs either against or in favour of the part-time workers represented by Miss McNeil.

In view of the very unusual nature of the application and the importance of it to all concerned, I shall grant leave to appeal to the Court of Appeal.

The Jurisdiction Issue

In my judgment the Appeal Tribunal has jurisdiction to direct that the Applicants be added as parties to the proceedings in Levez v. T H Jennings and to grant leave to appeal, subject to an extension of time for appealing being granted by the Court of Appeal.

Jurisdiction is conferred by Rule 18 of the Employment Appeal Tribunal Rules 1993 which confers a very wide jurisdiction to make directions about the joinder of parties

"The Appeal Tribunal may, on the application of any person or of its own motion, direct that any person not already a party to the proceedings be added as a party, or that any party to proceedings shall cease to be a party, and in either case may give such consequential directions as it considers necessary."

The width of this jurisdiction is apparent not only from the wording of Rule 18 but also from the contrast with the wording of similar rules governing the procedure of Industrial Tribunals and of the Supreme Court.

Rule 17 of the Industrial Tribunals (Constitution and Procedure) Regulations 1993 provides -

"(1) A Tribunal may at any time, on the application of any person made by notice to the Secretary or of its own motion, direct any person against whom any relief is sought to be joined as a party, and given such consequential directions as it considers necessary."

As Mrs Levez does not seek any relief against the Applicants, the Industrial Tribunal would have no jurisdiction to join the Applicants in proceedings before it. The Rules of the Supreme Court governing High Court actions and appeals to the Court of Appeal are also in more restricted terms than Rule 18 of the EAT Rules. Order 15, Rule 6 confers jurisdiction on the Court to order persons to be added as a party to proceedings but only in cases of

"(i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute to the causal matter may be effectually and completely determined and adjudicated upon, or

(ii) any person between whom and any party to the causal matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter."

Under Order 59, Rule 8 the Court of Appeal may direct that a Notice of Appeal or Respondent's notice served on any party to the proceedings in the court below on whom it has not been served or "on any person not party to those proceedings". It is established by the authorities that a person cannot be joined as a party to an appeal unless he has a "legal interest" in the proceedings. A person cannot be joined as a party merely because he might be affected commercially or in some other respect by the outcome of the appeal. On this point I have been referred to the two authorities mentioned in the Supreme Court Practice 59/8/1: re I G Farbenindustrie A.G Agreement [1944] Ch 43 at p.45 where Lord Greene said -

"..I do not find anything in the Rules which entitled the court to add for its own convenience party having a merely commercial interest in the subject matter of the suit, and no legal interest in it."

In Spelling Goldberg Productions v. BPC Publishing Ltd [1981] RPC 280 at 281 the Court of Appeal refused an application for joinder by a person whose only interest in the outcome of the appeal was that it would be determine a question of law which might affect their business in the future. The Court held that it had no jurisdiction to accede to an application for joinder for intervenors.

Ms Carrs Frisk, for Mrs Levez, relied on these authorities for the proposition that there is no jurisdiction to join a party in proceedings for the purposes of an appeal, if that person has no legal interest in the proceedings. She submitted that this position was consistent with the general rule that a person who has a cause of action against another is entitled to pursue his remedy against that other person alone and cannot be compelled to proceed against other persons whom he has no desire to sue: see Moser v. Marsden [1892 1 Ch 487 and Dollfus Miege Companagne SA v. Bank of England [1951] 1 Ch 33, where an order for joinder was made because it was held that the applicant had a direct interest in the subject-matter of the action. Ms Carrs Frisk therefore submitted that it was clearly established, as a matter of principle, that a person may not be joined as a party to legal proceedings, unless he has a legal interest in the outcome of the proceedings, going beyond a merely commercial interest or an interest in the determination of an issue of law which may affect him. She argued that although the wording of Rule 18 of the EAT Rules was different from the rules of the Supreme Court on which the above cases were decided, there was no good reason why the same well established principle should not apply.

These submissions were supported by Ms McNeil, on behalf of the part-time workers. She pointed out that there was no reported authority on the meaning and effect of Rule 18. In those circumstances the Appeal Tribunal should apply the same pirnciples on the question of jurisdiction as have been applied in the High Court and the Court of Appeal. The Court, she submitted, does not recognise a commercial interest in the outcome of litigation or an interest in the outcome of an appeal so far as it determines a point of law which may affect the business interests of the proposed intervenor. The only interest which the Applicants could have in the outcome of Mrs Levez's case was the interest of an employer in general not as a employer of anyone who was involved in Mrs Levez's case. Further the fact that T H Jennings had not played any part in the appeal before the Appeal Tribunal was not sufficient to confer jurisdiction on the Court to join the Applicants as parties for the purposes of an appeal so that the Court of Appeal could hear argument from them on the points at issue. The cases showed that there was no jurisdiction to join a party simply to help the Tribunal or court reach a decision on a point on which they might wish to hear argument.

In my judgment, the submissions made by Ms Carrs Frish and Ms McNeil make many forceful points which are relevant to the exercise of discretion to make an order for joinder but they have not persuaded me that the Appeal Tribunal has no jurisdiction to make the order. According to its plain and ordinary meaning Rule 18 confers that jurisdiction. Whether the discretion which is conferred by that jurisdiction should be exercised or not is another matter, to which I now turn.

Exercise of Discretion

It was accepted by Miss Caws and her supporters that in a case where the applicant for joinder has no direct interest in the proceedings, the discretion should only be exercised very sparingly and in exceptional cases. Miss Caws' main submission was that this was a wholly exceptional case.

The following points were made in support of this submission -

(1) The interest of the Applicants' employers went far beyond a mere commercial or business interest. They had a direct interest in the proper expeditious disposition of proceedings which they were already engaged in as a test case. The outcome of those proceedings affected very large numbers of public and private sector employers and employees.

(2) There was also general interest in the proper administration of justice. On the hearing of the appeal in the Preston and Fletcher cases, the Court of Appeal should be free to consider the question whether there should be reference to the European Court of Justice of any, and if so, what questions, without the fetter otherwise imposed by the unchallenged ordef for a reference in the Levez case.

(3) The S.2(5) point affects a large proportion of the part-timer's pension application. The case brought by Mrs Levez was in very different circumstances. She was a single Applicant. The case involved its own exceptional facts and it would be unfortunate if that case were permitted to "highjack" the part-time pension litigation on the S.2(5) point. The public interest requires that the arguments and counter-arguments should be fully and properly explored. The difficulty with Mrs Levez's case is that no employer had been represented in the Appeal Tribunal to argue the case contrary to Mrs Levez and no employer would be represented on the reference at the European Court of Justice.

(4) There are over 60,000 part-timers' applications pending before the Industrial Tribunals. Careful arrangements had been made to ensure that the issues raised could be resolved in test cases drawn from different sectors. Those arrangements will come to nothing if the Levez case were to be decided in the national court or in the European Court of Justice without the benefit of argument from public and private sector employers.

(5) The Appeal Tribunal had itself recognised the desirability of the part-timers' case and the Levez case being heard together. It was purely fortuitous that this did not occur. If they had been heard together before the same Tribunal then the difficulty which has been created by the conflicting decisions of different divisions of the Appeal Tribunal would not have arisen.

In addition Miss Caws QC accepted that if an order for joinder was made, the Appeal Tribunal would have power to impose appropriate terms eg, restricting the ambit of the appeal and the extent to which those joined as parties could participate in the Levez case other than in the reference.

In summary the Applicants' case was that they would be gravely prejudiced if they were unable, through lack of standing, to appeal against the decision to make a reference in Levez. They have a strong interest in the outcome of that reference and ought to have locus to appear at the reference. If the application for joinder were not granted, the decision of the Court of Appeal in the part-timers' case could, in effect, be pre-empted by the unopposed order for reference in Mrs Levez's case.

Mr Coppel adopted the submissions and Mr Vadja, for the Secretaries of State , strongly submitted that the Appeal Tribunal should exercise its discretion in favour of joinder. He argued that the Tribunal should do everything in its power to ensure that cases raising common interest of major importance should be dealt with in the same way and not heard by different courts which may reach diffrrent conclusions. Considerations of legal certainty, procedural economy and fairness to the parties were consistent with that approach. Indeed, the Appeal Tribunal in this case had sought to list the Levez case before the same constituted Tribunal as heard the part-timers' case but that had proved impossible to achieve due to the unavailability of all the members of the Tribunal and all the counsel on available dates.

He also emphasised the desirability of this approach when one is concerned with test cases and with cases which involve potential references to the European Court of Justice. Unless the application is granted, the part-timers' case will go down a different route. Mrs Levez's case is stayed pending the reference to the European Court of Justice. The part-timers' case goes forward to the Court of Appeal in December and then possibly further to the House of Lords. The problem was that the route followed in the Levez case would effectively pre-empt the route in the part-timers' case. That would be detrimental to those parties in the part-timers' case who would not be able intervene in Mrs Levez's case in the European Court of Justice. This was particularly unfortunate and, indeed, unfair on the parties to the part-timers' litigation where special care had been taken to select parties to ensure that their views could be properly put forward. The fact that the employer in the Levez case was no longer participating in them meant that the interests of the employer were not represented on the reference. As long as the reference in the Levez case stood, the Court of Appeal would be put in an impossible position on the hearing of the part-timers' appeal.

Mr Vadja also placed emphasis on the unusual nature of the procedure for a reference. He pointed out, rightly in my view, that a reference is not a right given to a party to a litigation. It is a process of co-operation between the national court and the European Court of Justice. References were made not because a party asked for them but because the court made a judicial decision that it was necessary to have a ruling on a question of interpretation of Community Law in in order to decide the case. In those circumstances the court should retain a greater degree of control over the decision to make a reference and that was a factor affecting the exercise of discretion for joinder, which was the only mechanism available to his clients and the other applicants for ensuring that theCourt of Appeal had an unfettered discretion to decide what was the right approach in both the part-timers' case and Mrs Levez's case. The Court of Appeal would then be enabled to decide whether to give judgment on the point without a reference or to stay proceedings pending a reference (see R v. Stock Exchange ex parte Else [1993] QB 534.

The joinder order would not prejudice Mrs Levez. She would be able to argue before the Court of Appeal that the Appeal Tribunal was right to make a reference. On the matter of costs, Mr Vadja pointed out that Mrs Levez was supported by the Equal Opportunities Commission who regarded her case as a test case. As both the part-timers' case and Mrs Levez's case were test cases, it was sensible that they should be heard together in the Court of Appeal. In all the circumstances the interests of justice favoured an exercise of the discretion for joinder and the granting of leave to appeal. It was recognised that even if the order was made, as asked, it would be necessary to obtain an extension of time for appealing from the Court of Appeal.

These are substantial and interesting arguments, but they do not persuade me that I should exercise the jurisdiction of the Appeal Tribunal to take what is a wholly acceptable course. The decision on the question of joinder is really one that is more appropriate to the Court of Appeal than for the Appeal Tribunal. The Application is made solely for the purposes of getting the Levez case before the Court of Appeal so that it can be heard together with the part-timers' appeal. I am informed by counsel that the Court of Appeal have already given directions in relation to the hearing of the part-timers' appeal. It seems to me that this is a matter on which further directions should be obtained, not from this Tribunal but from the Court of Appeal. It was right to make this application to the Appeal Tribunal in the first instance. I have decided to refuse it but to grant leave to appeal. This means that the Court of Appeal can not only decide whether or not I have exercised my discretion under Rule 18 correctly. They can also decide whether to exercise the discretion under their own jurisdiction to make the order for joinder so that they can hear argument from interested parties as to whether the Appeal Tribunal was correct in making the reference in Mrs Levez's case. The Court of Appeal may decide that it was right to make the reference. In which case it may make a similar reference in the part-timers' case or simply stay that part of the proceedings until the result of the reference in Mrs Levez's case is known. If, on the other hand, the Court of Appeal decide that it was not right to make the reference, they can communicate with the European Court of Justice and ask that the reference be withdrawn and that the proceedings in the European Court of Justice be discontinued: see Rules of the Supreme Court 114/1 - 6/20.

In addition to this general consideration, I have also been persuaded by Ms Carrs Frisk and Ms McNeill that there are other reasons why the discretion should be exercised in their favour and the application refused. She has succeeded in obtaining from the Appeal Tribunal a reference to the European Court of Justice. Although the Respondents were not represented, the Appeal Tribunal had full argument from the Amicus before making that order. If the Applicants were permitted effectively to step into the shoes of T H Jennings and appeal the refernce to the Court of Appeal, Mrs Levez would be involved in significant additional costs in respect of representation. It was wrong in principle that the Applicants should be allowed to take over the opposition to her claim. Even though her position on costs might be protected by including, as a condition of joinder a requirement that the Applicants indemnify Mrs Levez, although supporting her case, against the costs incurred as a result of the adjoinder and on the appeal and also agree not to seek any order for costs against her.

The questions had already been referred to the European Court of Justice. That Court should now decide that question. It was not the very same question which arose in the part-timers' case. There was no issue raised in that case as to whether there should be a discretion to extend the two-year period where a claimant under the Equal Pay Act had been delayed in bringing a claim because of a misrepresentation by the employer about the level of remuneration received by men performing like work.

It was not necessary for the Court of Appeal to have Mrs Levez's case before them in order to decide whether or not a reference to the European Court of Justice was appropriate in the part-timers' case. If the Applicants are right and the question of compatibility of S.2(5) with European law is clear, the European Courtof Justice will answer the questions referred to them against Mrs Levez. If, on the other hand, the Court of Appeal conclude that there is a question of compatibility to be decided by the European Court, there will be time for the part-timers' case to catch up with the Levez case and all the relevant arguments could be heard together in the European Court of Justice.

Even if the joinder order was made and the order for reference was overturned by the Court of Appeal, this would not prevent a reference to the European Court of Justice on the S.2(5) point since that matter had already been referred by the Industrial Tribunal Office in Northern Ireland in the case of Maggorian. Whether the Applicants like it or not, this issue will be decided in some other case by the European Court of Justice.

I have taken these factors into account, as well as the general consideration that this is really now a matter for the Court of Appeal, in deciding to exercise the discretion against the Applicants.

Final Points

I should mention three other points which were raised by me during argument.

(1) No point was taken by any of the parties objecting to the determination of the application by me alone. It was agreed that the application was in the nature of an interlocutory application and could therefore be heard by a judge of the Employment Appeal Tribunal without the presence of lay members.

(2) No objection was taken to my determining the application, even though I ceased to be the President of and a judge of this Tribunal on 30th September. The hearing of the application took place on 11th October. That was the earliest date convenient to all concerned, but the application had in fact been made on 8th September, while I was still a judge of the Tribunal. It was common ground that I therefore had jurisdiction to decide the application which arose in proceedings which had not been finally determined, because of the pending reference.

(3) During the course of argument I raised with counsel a different procedure than that which was invoked in this case, but the suggestion did not find favour with any party. I pointed out that under the Employment Appeal Tribunal Rules, Rule 25, the Appeal Tribunal may either of its motion on application at any stage of the proceedings give any party directions as to any steps to be taken by him in relation to the proceedings. I suggested that the Appeal Tribunal might of its own motion direct that no further steps be taken in the case of Mrs Levez, including the order for the reference, until the part-timers' case had been finally disposed of. If the final decision in the part-timers' case was that there was no incompatibility between S.2(5) and Community Law, the Appeal Tribunal might then exercise, of its own motion, its power under Rule 33 to revoke or vary the order for the reference if the interest of justice so required. As no one was interested in following this course, I make no further comment on the Tribunal's powers under those Rules.

... Copyright 19960EAT/812/96
 


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