United Kingdom Employment Appeal Tribunal

Appeal No. UKEATPA/0291/11/LA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

                                                                                                               At the Tribunal

                                                                                                               On 19 September 2011

Before

HIS HONOUR JUDGE McMULLEN QC

(SITTING ALONE)

MR P G HUGHES                                                                                                  APPELLANT

TRANSPORT FOR LONDON                                                                           RESPONDENT

Transcript of Proceedings

JUDGMENT

RULE 3(10) APPLICATION - APPELLANT ONLY

                                              APPEARANCES

SUMMARY

PRACTICE AND PROCEDURE – Striking-out/dismissal

It is an abuse of process for a Claimant, whose claim was compromised by monetary agreement or award to seek to re-open it 17 years after his unfair dismissal when, in light of a changed pension regime, it turned out to be not so good a deal.  The new claim was correctly struck out.

HIS HONOUR JUDGE McMULLEN QC

Introduction

1.            In Haritaki v South East England Development Agency [2008] IRLR 945 at paragraphs 1‑13 I set out my approach to rule 3; it should be read with this Judgment.  That approach has been approved by the Court of Appeal in, for example, Hooper v Sherborne School [2010] EWCA Civ 1266 and Evans v University of Oxford [2010] EWCA Civ 1240.  On the sift of this Notice of Appeal in accordance with Practice Direction 2008 paragraph 9, power was exercised by the President under rule 3(7).  He concluded in chambers that the case disclosed no reasonable prospect of success, for bringing the appeal where no point of law is found section 21 of the Employment Tribunals Act deprives the EAT of jurisdiction to hear the case.  The Claimant was given the opportunity to amend the Notice of Appeal or to have the case heard before a Judge under rules 3(8) or (10).  I am thus hearing the case on more material than was available to the first Judge and form my own view of the appeal.  The question for me is whether there are any or no reasonable grounds in the appeal.

The procedural background

2.            Mr Hughes contends that he has a right to a full hearing on a contract of employment concerning his pension.  I can do no better than pray in aid in full the Judgment given by Underhill P on 9 December 2009, UKEATPA/0756/09, which explains fully the circumstances that Mr Hughes presented then.  The case itself today arises out of a Judgment of the Employment Tribunal on 27 March 2009, full Reasons given by Employment Judge John Warren on 2 July 2009, where the Claimant’s claim was struck out as an abuse of the process.  The Claimant’s case came before the President again on the sift, and that is in relation both to the Judgment I have just cited and a review refusal by Judge Warren on 30 June 2011, itself being made on the basis that the review application had no prospect of success and the interests of justice did not require a review.  The President said this:

“It is, I am afraid, impossible to make sense either of the ET1 or of the Notice of Appeal, even with the help of my judgment in UKEATPA/0756/09/LA, which I have re‑read.  But it is at least clear that the former appears to raise no claim which could be the subject of fresh proceedings in the Employment Tribunal, and the Judge was right to dismiss it.”

3.            And so the matter comes before me under rule 3(10).  I regret to say that I see nothing new in the approach of the Claimant in these proceedings after what was before the President in 2009.  It will be recalled that the Claimant was dismissed 17 years ago, in 1994.  The essence of his complaint is that the award that was made to him, in circumstances which were at the time unclear in his estimation, inured into a decision that he would receive either £3,000 or £5,000.  Now that he is entitled to a pension it appears that that is not such a good deal.  But there is no jurisdiction for the re-opening of an award, if that indeed is what it was, or of an offer accepted to compromise the first proceedings before Morrison J or a Judgment of the EAT.

Conclusion

4.            The point is Mr Hughes won his case of unfair dismissal and received compensation either from the employer directly or from an award of the court.  That it turns out now some 15 years later not to have been such a good deal is not a matter that is within the remit of the Employment Tribunal.  Judge Warren was correct to strike it out; it is an abuse of the process.  That sounds much stronger than it really is.  It is a technical term, but the Judge was also right that it has no reasonable prospect of success.  I respectfully agree with the President in his rule 3 opinion and gratefully adopt what he said in 2009.  I am sorry that Mr Hughes continues to suffer from what in my judgment is the consequence of a decision made 15 years ago.  In the light of his recalculation of pensions he earnestly wishes to have the matter corrected, but I am afraid there is no jurisdiction.  I too form the view that there is no prospect of success in this appeal, and it is an abuse of the process of the EAT for the matter to go any further.  This application is dismissed and with it the appeal.