United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON


 


MR JUSTICE LINDSAY (PRESIDENT): We have before us by way of a preliminary hearing the appeal of Mr W. Morgan in the matter Morgan against Swansea College and it is concerned with whether Mr Morgan's IT1 was out of time. Mr Morgan has been in person before us today.

1. It might be best to set out something of the statutory background because it is not altogether commonly encountered. Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 has a bold heading "Action short of dismissal on grounds related to union membership or activities". Subsection (1) says:

"(1) An employee has the right not to have action short of dismissal taken against him as an individual by his employer for the purpose of –

(a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so."

And then, there are provisions (b) and (c) which do not arise in this case.

2. Mr Morgan has, as we understand it, all along been a member of an independent trade union and so the only material purpose that he was complaining of was action short of dismissal taken for the purpose of deterring him from being a member. Subsection (5) of section 146 says:

"(5) An employee may present a complaint to an employment tribunal on the ground that action has been taken against him by his employer in contravention of this section."

Section 147 provides a time limit:

"(1) An employment tribunal shall not consider a complaint under section 146 unless it is presented –

(a) before the end of the period of three months beginning with the date of the action to which the complaint relates or, where that action is part of a series of similar actions, the last of those actions, or

(b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period, within such further period as it considers reasonable."

Subsection (2) and (3) of section 147 says:

"(2) For the purposes of subsection (1) –

(a) where an act extends over a period, the reference to the date of the act is a reference to the last day of that period;

(b) a failure to act shall be treated as done when it was decided on.

(3) For the purposes of subsection (2), in the absence of evidence establishing the contrary an employer shall be taken to decide on a failure to act –

(a) when he does an act inconsistent with doing the failed act, or

(b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done."

So far as concerns the purpose of the employer is dealt with in section 148 (1) and (3):

"(1) On a complaint under section 146 it shall be for the employer to show the purpose for which action was taken against the complainant.

(3) In determining what was the purpose for which action was taken by the employer against the complainant in a case where -

(a) there is evidence that the employer's purpose was to further a change in his relationship with all or any class of his employees, and

(b) there is also evidence that his purpose was one falling within section 146,

the tribunal shall regard the purpose mentioned in paragraph (a) (and not the purpose mentioned in paragraph (b)) as the purpose for which the employer took the action, unless it considers that the action was such that no reasonable employer would take having regard to the purpose mentioned in paragraph (a)."

Subsection 5 speaks of the "class". We will not need to read that out. That is the statutory background to the case which Mr Morgan brought.

3. On 5 May 1998 Mr Morgan presented his IT1 claiming, so far as is material, "Action short of Dismissal" and he particularised that claim in a number of ways. He said, in paragraph 4:

"4 It is the applicant's contention that the respondents [Swansea College] were and are guilty of conduct amounting to:

(b) conduct prejudicial to the applicant, amounting to action short of dismissal."

And then, under a heading of "Particulars of Breach/Action" he says

"(a) the respondents have been a party to a conspiracy with their association (the Association of Colleges):

(i) to breach their contract with the applicant; and

(ii) to otherwise unlawfully interfere with the said contract

in that the respondents have (inter alia) applied a policy of the non-payment of annual or other periodic wage reviews;

(b) the respondents have treated the applicant differently and prejudicially, compared to the treatment offered to others, in that:

(i) the respondents (in an attempt to persuade staff to transfer to new contractual terms) have offered others

(a) a lump sum of £500

(b) several professional incremental salary points

(ii) the respondents have declined to offer the applicant the said (b above) incremental points."

And he said in paragraph 7 of that:

"7 The respondents' said conduct is continuing."

4. So when one is turning to the problem of whether his complaints are in time or out of time, one has to look to when the policy, if it was a policy, of non-payment of periodic wage increases was instituted. When was the offer made of £500 to others and when were the several professional incremental salary points offered to other persons? And one has to look to see whether the conduct was continuing, as was alleged.
5. Not surprisingly, the College's IT3 took the point that Mr Morgan was out of time with his complaint and a hearing before the Employment Tribunal at Cardiff was arranged and it took place under the chairmanship of Dr Rachel Davies. It took some four days in February and April 1999 and the decision was promulgated on 7 April 1999 and it was:

"The unanimous decision of the tribunal is that the originating application is struck out for lack of jurisdiction."

6. The history of Mr Morgan's position was carefully set out. Most of the colleagues that he had had at the College had, over a period of time, moved to new contracts. He, with a small number of others, had elected to stay on the so-called "Silver Book". The Tribunal said, in paragraph 38:

"38 He chose to remain on the Silver Book and as a result he enjoys long holidays and short attendance hours. He cannot reasonably expect to retain those advantages and at the same time reap the rewards enjoyed by those who are burdened with the pressures of the 52 week year."

7. Unsurprisingly, given the vagueness of Mr Morgan's IT1, the Employment Tribunal in ruling on whether his complaint was in or out of time, elected to hear the whole of his complaint. That is a somewhat cumbersome thing to do in the sense that it means that the whole case is heard in order to determine whether there is jurisdiction to hear the whole case and it does raise the question of how wise it is, when the whole case has been heard, to express the decision as only being in point of jurisdiction, which was the way it was expressed here. It might, perhaps, have been wiser to have added a finding on the lines of "And if, contrary to our conclusion, we did have jurisdiction, we would have decided as follows for the following reasons, namely" and then the reasons could have been given. However, no such conclusion was actually expressed here. The decision of the Tribunal was simply on the question of jurisdiction in relation to time. The Tribunal said, at their paragraph 28, the following:

"28. It was not apparent from the originating application and further and better particulars whether Mr Morgan was in fact asserting any material fact capable of being regarded as action short of dismissal within the three months prior to presentation. His representative, Mr Nicholson, addressed the tribunal at the outset of the hearing, asserting that the action complained of was a continuing act of on-going policy. Also Mr Morgan gave some evidence as to the nature of the complaint. However, the point remained obscure and the tribunal took the view that it would be unsafe to decide the jurisdiction issue without hearing all the evidence. We therefore proceeded, leaving the question as to time limit to be decided at the end."

8. There is nothing to suggest that the parties did not recognise that the Tribunal was embarking on hearing all the evidence. It is not clear, though, that the Tribunal had indicated that it was going to decide anything but jurisdiction and, as I mentioned, ultimately they did decide only jurisdiction. The only relevant action that Mr Morgan had relied upon in his IT1 was three-fold, as identified by the tribunal in their paragraph 31:

"(i) With regard to alleged failure to carry out pay reviews, we are satisfied on the oral and documentary evidence that Silver Book pay was in fact reviewed each year and that a considered decision was taken not to award an increase. We find that that decision was reasonable and was not taken by way of penalty."

And a little later:

"There was no evidence to suggest that the purpose was to penalise for trade union membership."

So that was one head of complaint. Another was this:

"Mr Nicholson submitted that the right to a pay review gave rise to a financial expectation in the form of a salary increase.

This is rejected. Any such expectation must have been eliminated by Mr Lewis's letter in 1994 informing staff that it was 'most unlikely' that those who remained on the old contracts would receive increases. As there was no increase thereafter expectation cannot reasonably have been resurrected. If Mr Morgan wished to base his claim on loss of financial expectation he should have presented it within three months of Mr Lewis's letter."

In another form:

"(ii) With regard to the alleged denial of promotion we are satisfied that Mr Morgan was not denied promotion. He had the same opportunities as all other staff to apply for promotion and there was no evidence to suggest that he had applied. Had he done so he may have been promoted. We find that no action was taken against him as an individual in this respect. He was aware of the need to apply for promotion in 1994. If he wished to base his case on denial of promotion he should have presented it within three months of receiving that knowledge."

With regard to yet another form of complaint, the tribunal says:

"(iii) With regard to pension, we are satisfied that the effect of static salary on potential pension entitlements was not the result of action taken against Mr Morgan as an individual. It was the result of his choosing to remain on existing contractual terms which called for less productivity and flexibility than the new contract and which therefore, in the respondents' view, did not justify pay increases. Any complaint on this basis should have been presented within three months of Mr Lewis's letter indicating that the increases were unlikely."

Finally, the tribunal say:

"32. Mr Morgan's case in so far as it is based on the assertions made prior to the hearing therefore discloses no material fact capable of being regarded as action short of dismissal occurring within three months prior to presentation of the originating application."

9. The Tribunal does not in terms mention that the onus of proof had lain on the employer, as to the purpose behind action, but they say nothing inconsistent with having taken the view that the onus was on the employer. Accordingly, so far as related to assertions made prior to the hearing, each assertion was found to have been such that there was nothing in the three-month period of which Mr Morgan could complain. It might have been prudent had the Tribunal stopped there but, somewhat generously, they went on to consider allegations which were made not before the hearing but during the course of the hearing. They do not say in terms that Mr Morgan was disabled from running the late points by reason of their lateness and, I think, we have to treat it as if they were willing to take the claims made during the hearing as properly made on Mr Morgan's behalf, generous in his favour though that was.
10. The Tribunal then made a series of findings which, on the face of things, had nothing to do with jurisdiction but they do return to jurisdiction from time to time. In paragraph 44, they say:

"44. … the absence of a collective bargaining clause in the new contract was apparent to him in 1994, and any complaint made on this basis should have been made within three months."

In paragraph 47, they say:

"47 Other alleged actions against Mr Morgan included the removal of evening duties in September 1998 and changes to his timetable in November 1998. Both of these took place after presentation of the originating application and form part of the alleged continuing action."

In paragraph 52, they say:

"52 We reject Mr Nicholson's overall submission that there was an on-going policy which constituted action against Mr Morgan as an individual. We find that there was a policy of encouragement of transfer to new contracts which were drafted with the object of increasing productivity and flexibility, and that there was a policy of awarding pay increases only to those who satisfied the criteria of increased productivity and flexibility. Those policies were applied to all staff generally irrespective of whether or not they were members of a trade union and we find that their purpose was to satisfy changing educational needs. There was no evidence whatsoever capable of establishing that action short of dismissal was taken against Mr Morgan as an individual for the purpose of penalising him for membership of a trade union."

Paragraph 53 says:

"53 Having heard the evidence and ascertained the actions complained of and having concluded that they were not 'actions short of dismissal' within the meaning of section 146 we go on to deal with the question of jurisdiction. The issue is not whether the alleged actions did in fact constitute actions within the meaning of section 146, but whether Mr Morgan's genuine perception was that they did and, if so, whether his complaint was presented within the three month time limit of the last of the perceived actions."

Paragraph 54 says:

"54 None of the alleged actions took place within three months prior to presentation of the originating application on 5 May 1998. The last pay review on which Mr Morgan was awarded no increase took place eight months previously. Mr Nicholson submits [he was appearing below for Mr Morgan] however that the action was continuing in that there were the evening duties and timetable incidents in September and November 1998 and in that there was to be no pay increase on the next review."

Paragraph 55 says:

"55 His submission is rejected. The wording of section 147 is that the tribunal shall not consider a complaint unless it is presented before the end of the three months 'beginning with' the date of the action complained of or the last of a series of similar actions. The complaints as to evening duties and timetable were not presented before the end of the three months 'beginning' with those actions."

And in their last page the Tribunal says:

"ON THE EVIDENCE we find that:

(i) …

(ii) no action was taken which could reasonably have been perceived by Mr Morgan as action short of dismissal within the three months beginning with the last of the alleged actions, nor prior to or subsequent to that period."

And accordingly, their conclusion was:

"60 Having regard to those findings we conclude that Mr Morgan did not have a genuine perception that action within the meaning of section 146 of the 1992 Act had been taken against him, either within or outside the three month limitation period. Accordingly the tribunal has no jurisdiction to deal with his complaint and we strike out the originating application."

11. Mr Morgan's Notice of Appeal is dated 17 May 1999. For reasons we do not need to go into here, it was not, in the first place, registered and was later allowed to be registered, although initially out of time but that was not ruled upon finally until 7 February 2000, which explains some of the delay in the matter.
12. The first ground in the Notice of Appeal concerns the employer's failure to carry out a pay review and whether or not that failure had, indeed, been within the three months before the IT1 was lodged on 5 May 1998 because time after time we will need to come back to the point that Mr Morgan needs to point to some relevant action on a date later than 4 February 1998, three months before 5 May 1998. The only matter referred to in the Notice of Appeal within the post-4 February 1998 period on this topic is a letter before action of 14 April 1998. We have been taken to that letter by Mr Morgan. It merely threatens proceedings for constructive dismissal. Drawing attention to the letter, there is nothing to undermine the Tribunal's view that the last pay review on which Mr Morgan had received nothing was eight months before the IT1. Nor does the Notice of Appeal raise any argument which might undermine the Tribunal's conclusion that no other "actions" were found in the post-4 February 1998 period. The case in this area is essentially one of fact and we are able to detect no arguable error of law in this particular part of Mr Morgan's attack on the decision below.
13. Next in the Notice of Appeal, although he has not orally ventilated it today, Mr Morgan raises issues as to the applicability of the reasoning in the House of Lords in two joint cases, Associated Newspapers Ltd v Wilson and Associated British Ports v Palmer, which are reported together at [1995] ICR 406.
14. We do not doubt that where there are repeated actions, hostile to a person or hostile to the class in which he finds himself, it can be open to a Tribunal to find a policy or practice or rule which continues beyond the date of the last example relied upon as an illustration of the existence of the policy, rule or practice. The concept is very familiar in discrimination cases where, for example, there can be repeated failures, say to appoint a black to a job or to promote blacks - consider the position in Owusu v The London Fire & Civil Defence Authority [1995] 574 EAT. But that does not assist Mr Morgan here because no policy, rule or practice was found as a matter of fact by the Tribunal below. Indeed, they specifically deny any existence of any such matter. Mr Morgan is therefore left with separate incidents to assert unless he can show that there was evidence given below which should, ineluctably, have led to the conclusion there was indeed, a relevant policy, rule or practice. Short of that, he is left with looking only at separate incidents and once one looks only at separate incidents then, as the Tribunal has found, there is nothing in the post-4 February 1998 period.
15. We have been given no reason to think that there was evidence which should have ineluctably led to the existence of a policy, rule or practice that the employer was taking action short of dismissal with the purpose in mind of deterring Mr Morgan's union membership. Accordingly, in order to succeed, Mr Morgan needed to find action in the post-4 February 1998 period and that he was unable to do. No amount of dissection of the reasoning in Associated Newspapers in the House of Lords asserts him on the issue of jurisdiction and being out of time.
16. Mr Morgan next turns in his Notice of Appeal to the Acquired Rights Directive. But there is nothing in the Acquired Rights Directive that has been argued to invalidate the time bar which is statutorily provided in section 147. If Mr Morgan had acquired rights, well then, they were vulnerable to being lost if he failed to act within the prescribed period.
17. Next the Notice of Appeal turns to salary reviews. Whether Mr Morgan's case on salary review would have had any merit had it been lodged in time is irrelevant for the purposes of jurisdiction. The Notice of Appeal does not identify any action within the post-4 February 1998 period which touches on salary reviews.
18. The Notice of Appeal then turns to perversity. It misunderstands what is required of that very difficult allegation. Mr Morgan's Notice of Appeal says:

"The tribunal

(i) reached conclusions for which there was no conclusive, or little evidence

(ii) that the tribunal chose to ignore unchallenged representations."

19. But so long as there is some evidence for a given conclusion, the conclusion is not perverse. Perversity of the kind here spoken of requires that there should have been no evidence to support it. To say therefore that there was nothing conclusive, or only a little, does not make a case in perversity. As for representations, the Tribunal was entirely free to choose whether to accept a representation or not, even if it was unchallenged. Even unopposed evidence, properly so-called, can in some cases be given no weight but mere representations, if by that is meant submissions or oral argument, can certainly be left weightless if the Tribunal so decides.
20. We believe that we have dealt with all the points raised in the Notice of Appeal which come anywhere close to raising an error of law. Mr Morgan manifestly feels very strongly about trade unionism, about collective bargaining, and about what he calls economic duress exerted on him and his colleagues but our decision has nothing to do with the merits or demerits or in any other way with such grand subjects. We are dealing only with the question of whether there was error of law demonstrated in the Tribunal's decision that Mr Morgan was out of time. We have not been able to find any reasonably arguable error of law in that decision and accordingly, we must dismiss the appeal, even at this preliminary stage.
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COSTS APPLICATION

21. We have now before us, as a preliminary hearing of the appeal, the appeal of Mr Morgan in Morgan against Swansea College, but this time limited to costs.
22. Again, Mr Morgan is in person and the appeal concerns the costs of the Tribunal proceedings below in the case which we have just dealt with by dismissing the appeal. The two cases really need to be read together and this is, so to speak, a supplement that deals with the separate appeal as to costs.
23. On 26 April 1999 the same Tribunal which had heard the substantive case heard a case as to costs and the Tribunal concluded:

"The Applicant is ordered to pay the whole of the respondents' costs of this case to be assessed in the County Court on the Standard Basis."

It held:

"We find that in bringing the case and in the conduct of the case Mr Morgan has acted unreasonably."

Mr Morgan had failed to attend the hearing as to costs. The Tribunal said:

"By his unexplained non-attendance today he has deprived himself of the opportunity to give evidence as to his means and we can only rely on the information before us."

As to his unreasonableness, as the Tribunal found it to be, they said this, beginning in paragraph 3:

"Time and expense was wasted on the preliminary hearing as to jurisdiction on the breach of contract and unfair dismissal issues. Any reasonable applicant properly advised must have appreciated that termination of employment is an essential element of unfair dismissal and of breach of contract. Mr Morgan has been advised throughout by Mr Nicholson, who described himself as a lawyer. He must therefore have been aware that as long as he was still employed and had not received notice of termination he was not in a position to complain of unfair dismissal or breach of contract."

A little later, they say:

"The particulars of his claim have been deplorably obscure throughout and have necessitated repeated requests by the respondents for clarification of the issues. They remained so unclear that the Tribunal found it necessary to sit through three days of hearing before it was able to ascertain whether it had jurisdiction to hear the case, which it did not."

And then, in paragraph 6, the Tribunal said:

"6 It is said that 'the length of time taken by the Tribunal taking evidence to reach its conclusion seems to deny a conclusion of [its being] 'otherwise unreasonably'. On the contrary, the length of time taken was due entirely to the applicant's persistence with a complaint which had no reasonable prospect of success, to the obscurity of the particulars on which his case was based, and to Mr Nicholson's arguments which were misconceived and, at times, bizarre. This is a case which should never have been brought and should never have been pursued, particularly after the indication given in the pre-hearing review."

24. It seems, therefore, that an order for a deposit had been made at a pre-hearing review under rule 7 (4) which should have warned Mr Morgan or Mr Nicholson, or both of them, that Mr Morgan going ahead was standing in to danger and, indeed, Mr Morgan accepts that it had that effect.
25. To succeed before us Mr Morgan has to show that in its award of costs, which is upon the exercise of a discretion conferred upon the Employment Tribunal, the Tribunal either took into account some factor that they should not have taken into account or that they failed to take into account something which they should have taken into account or that in some way they erred in principle of law. Short of that, the Tribunal's exercise is unassailable because we, as a Tribunal here, can only deal with errors of law and short of any such finding, the error, if there was error at all, would be error of fact and not of law. We are unable to find any shortcoming of that description. Some of the attacks on the Tribunal's decision are truly hopeless. Thus, the Notice of Appeal says:

"Having proceeded through the interlocutory stage of these proceedings, and the opportunity to strike-out (where appropriate) the tribunal having declared its lack of jurisdiction, had no power thereafter to exercise any jurisdiction on the question of costs."

26. The Tribunal did, indeed, hold that it had no jurisdiction on the substantive complaint but that does not establish that it did not have jurisdiction to rule on the question of whether it had jurisdiction. It certainly was able to do that. That the Employment Tribunal had power to orders costs, as it did, cannot be denied. We have to recognise that the Tribunal, without error of law, held that Mr Morgan had been unreasonable in relation to his conduct of the proceedings and, recognising that, we do not intend to dignify every argument in the Notice of Appeal with a detailed response but it has to be borne in mind that the Tribunal below was undoubtedly the best judge of the manner in which the proceedings below had been conducted before it and of the time wasting or prolixity or confusion which were involved and also they had in front of them the history of all interlocutory stages to a degree which we could not hope to have.
27. So far as concerns his means, Mr Morgan has no one to blame but himself, if, by reason of his failure to attend the costs hearing, the Tribunal gained a picture of his means which was inaccurate. The Tribunal obviously has to act upon such matters as are actually put in front of it. If he had turned up, then, if the picture that the Tribunal was being given as to his means was excessive, he would have been in a position to counter it. By failing to turn up he lost that opportunity.
28. Reverting to our earlier statement of what needs to be shown if error of law is to be asserted in an arguable fashion, examining the case as we can, we can find no error of law even being arguable and accordingly, we must dismiss the appeal even at this interlocutory stage.
29. The bill for costs which Mr Morgan mentions as being threatened with is a matter not for us but for the County Court. It may well be, if Mr Morgan had attended and taken the opportunity to correct the view of his means which the Tribunal formed, that they might have made some lesser order in costs but that really is a matter that can only be laid at his own door, if fault is examined. But it, no doubt, is a feature which can be taken into account if and when the College turns to enforcing such order as may be made in the County Court. It may be that, at that stage, the College will be disposed to be content with an order which is proportionate to his means if an excessive view of what his means are has somehow in the meantime been created but those, we emphasise, are not matters for us.
30. Simply dealing with whether there was error of law in the Tribunal's decision, we are unable to find even an arguable error of law and accordingly, as we mentioned, dismiss the appeal at this stage.