Appeal Nos. UKEATPA/1247/10/JOJ
UKEATPA/1430/10/JOJ
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
11 April 2012
Before
HIS
HONOUR JUDGE McMULLEN QC
(SITTING ALONE)
MISS
H E JACKSON APPELLANT
WALSALL METROPOLITAN BOROUGH COUNCIL RESPONDENT
Transcript of Proceedings
JUDGMENT
RULE 3(10) APPLICATION - APPELLANT ONLY
SUMMARY
PRACTICE AND PROCEDURE
Appellate
jurisdiction/reasons/Burns-Barke
Costs
On appeal, the EAT was not concerned
with appeals against spent interim orders, after a substantive judgment: Edem
applied. The Employment Tribunal was entitled to dismiss the Claimant’s five
claims. The EAT would not interfere with the Employment Tribunal’s discretion
to award costs against her, noting she was a barrister with special experience
in employment law: Arrowsmith applied.
HIS HONOUR JUDGE McMULLEN QC
Introduction
1.
In Haritaki v SEEDA [2008] IRLR 945 at
paragraphs 1‑13 I set out my approach to rule 3; it must 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
the Practice Direction 2008, paragraph 9, HHJ Peter Clark exercised his
power under rule 3(7) of the Employment Appeal Tribunal Rules.
He concluded in chambers that the case disclosed no reasonable grounds for
bringing the appeal. Where no point of law is found, section 20 of the Employment Tribunals Act 1996
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 Judge Clark and form my own view of the
appeal. The question for me is whether there are any or no reasonable grounds
in the appeal.
Procedural background
2.
The Notice of Appeal came before Judge Clark, who said the following:
“The prolix Notice of Appeal is largely concerned with
historical Employment Tribunal interlocutory decisions (I note that an appeal
went to the Employment Appeals Tribunal in 2005 and thereafter to the Court of
Appeal).
These matters are not relevant or capable of resuscitation in
the present appeal, as to which:–
(1) The Employment Tribunal were entitled to find that the
Appellant was a worker, not an employee. Hence the unfair dismissal and breach
of contract claims failed for want of jurisdiction;
(2) The protected disclosure detriment, race and sex
discrimination and victimisation claims failed in the facts. The Appellant was
not believed by the fact‑finding tribunal.”
3.
The Claimant was dissatisfied, and the matter came again before
Judge Clark under rule 3(8), in which he opined as follows:
“Rule 3(7) Reasons
The fact that the original Notice of Appeal was prolix is an
observation, not a reason for rejecting it. I make the same comment on the
fresh Notice of Appeal dated 24 November 2010.
As to the fresh Notice of Appeal:–
1. It is for the Employment Tribunal to find the facts and
assess witness credibility. This Employment Tribunal rejected the Appellant’s
allegations of deceit levelled at the Respondent and found her not to be
credible. That is a judgment for them, not the EAT which is concerned with
points of law only. This Tribunal cannot retry the facts, disappointing as
this may be to the Appellant (fresh Notice of Appeal, paragraph 34).
2. Nevertheless, the Appellant persists in alleging dishonesty
on the part of the Respondent in relation to disclosure and in making
misleading submissions below. I repeat paragraph (1) above.
3. The Article 6 right to a fair hearing applies to both
parties; a point apparently made by Maurice Kay LJ at a previous
Court of Appeal hearing in this litigation (paragraph 46). What is clear
is that the Appellant has had every opportunity to put her case. Her
difficulty is that she cannot accept the result at every stage.
4. Nothing in the fresh grounds of appeal lend me to alter my
opinion expressed in the EAT letter dated 27 October 2010.”
4.
The second appeal in this case relates to costs. That too came before
Judge Clark, and he said the following:
“Costs Orders remain exceptional in the Employment Tribunal.
This was an exceptional case. The litigation ran for 8 years. The Claimant is
a barrister with employment law experience. It was hopeless. She made
unfounded allegations of deceit against officers of the Respondent (maintained
in her Grounds of Appeal – see, example paragraph 45), roundly rejected by
the Tribunal of fact. The costs order was entirely justified. No error of law
is raised in the Notice of Appeal (as corrected).”
5.
The Claimant being dissatisfied with that, the matter came again before
Judge Clark, who came to the following opinion:
“I refer to my comments on the fresh Notice of Appeal in
PA/1247/10/JOJ. Nothing in the fresh Notice of Appeal causes me to alter my
original opinion in relation to the costs appeal.”
6.
The procedural background to this case is dense and long. As the
Claimant, Miss Jackson, herself says, she relies on matters put before me
at an appeal against an order of the Registrar in 2005, and reference should be
made to what I said there [2005] UKEAT/0283, because Miss Jackson
indicates that I expressed concern for her condition, sympathy with her case
and a recognition of her rights under the Human Rights Act. I
am grateful for that endorsement. That case was appealed to the Court of
Appeal; I do not have a copy of Maurice Kay LJ’s decision refusing
permission to appeal, but I understand from certain citations from it that
recognition was also given by his Lordship to Miss Jackson’s conditions.
7.
This case in its procedural background contains at least six different
considerations by Judges in the ET. A number of those remain the subject of
controversy as far as the Claimant is concerned. In my judgment, all those are
water under the bridge. The approach I take is the one that I took in Edem,
approved by the Court of Appeal [2007] EWCA 394, which is that when claims are
dismissed there is no utility in, and no right to have further investigation
into, interim decisions of Judges.
8.
The focus therefore in this case is upon the substantive decision. This
case as it was ultimately articulated before the Employment Tribunal in
Birmingham over nine days in 2010 before Employment Judge Hutchinson
and members was of unfair dismissal contrary to section 103A of the Employment Rights Act
(whistleblowing), detriment under section 47B as a worker, breach of
contract for lack of notice, sex discrimination and race discrimination. All
five claims were dismissed.
9.
The Tribunal then went on to consider the Respondent’s application for
costs and decided to award £10,000 under the then prevailing rule 14 of the Employment
Tribunals (Constitution and Rules of Procedure) Rules 2001. The grounds were
that the Claimant had pursued claims that were misconceived and had acted
unreasonably in the pursuit of those claims, made the worse by the fact that
she is a barrister and is experienced in employment law matters, a fact that
she asserted again before me today, saying that she was highly experienced in
employment law.
The facts
10.
The Claimant was appointed by an agency to work for the Respondent. The
term of the engagement in this trilateral relationship was for six months, but
Miss Jackson did not survive even that short period. The relationship
went from 1 October 2001 to
4 or 8 February 2002. The Claimant was engaged to work as
a locum in employment law for the Respondent, and at the time there were a
number of cases made against the Respondent for equal pay. During the course
of her relationship, which was determined by the Employment Tribunal to be not
one of employment but of employment by the agency, the Claimant reported to the
head of legal services, Mr Curran. In that short career the Claimant made
what she considered were protected disclosures. The Respondent terminated the
relationship. The conclusions of the Employment Tribunal are these:
“22. For the claimant to be able to proceed with her breach of
contract claim she needs to have been able to show that there was a contract
between her and the Council. In our view there was a contract between Walsall
Metropolitan Borough Council and Michael Page Limited and a contract between
Michael Page Limited and the claimant. There was never any intention by any of
the parties to enter into contractual relations between the claimant and the
respondent.
23. The claimant was paid by Michael Page Limited. She did not
receive any sick pay, holiday pay or other entitlements of employees of Walsall MBC including pension. If she had been employed she could have enjoyed these even
if only a temporary employee. The council went through no recruitment process
which would have been necessary for her to become an employee.
24. In our view this is not a case where it is necessary to
imply the existence of a contract between Miss Jackson and the Council in
order to give business reality to the relationship between the parties.
25. It is our view the claimant always regarded herself during
her time with the Council and immediately after as being a worker. It was only
at a later stage that she decided she was an employee.
26. As she was not an employee we do not have jurisdiction to
deal with the breach of contract claims under the Employment Tribunal Extension
of Jurisdiction (England & Wales) Order 1994. As we do not have any such
jurisdiction that part of the claim fails and is dismissed.”
11.
The claim of automatic unfair dismissal failed because the Claimant was
not an employee. The Tribunal turned to her claim of detriment during the
course of employment. She was entitled to assert this claim as a worker,
and it was not necessary for her to be an employee, but this failed on six
levels, summarised in paragraphs 31‑38. The relationship was not
terminated because of any known disclosure by the Respondent. She failed to
identify a legal obligation owed by the Respondent, she did not make the
disclosure to a prescribed person, and the Tribunal was not satisfied that any
of the allegations was made in good faith.
12.
As to the race discrimination claims, the Tribunal dismissed those with
sex discrimination summarily on the grounds that persons of the different sex
and ethnicity would have been treated the same.
The appeal
13.
The Claimant appeals against those findings. She has produced very
substantial grounds of appeal, and today presents to me an argument that is
described as a second statement of the Appellant, of 34 pages. I have listened
most carefully, having read the relevant documents, and reminded myself of the
circumstances. The principal issue advanced by the Claimant in respect of the
liability Judgment against her is that her human rights have been denied and
that the deceit of the Respondent should be shown up at a public hearing. I
reject that on the grounds that there has been a full hearing of the Claimant’s
claims. Her civil rights have been vindicated. Her civil right is to a fair
hearing before a tribunal: Article 6. The Claimant’s approach is to
continue to criticise the Respondent for deceit, matters which were before the
Employment Tribunal and which were dismissed. The Claimant’s claim continues
to be that the Respondent was deceitful and exercised subterfuge, and indeed
colluded with the Employment Tribunal.
14.
I regard these grounds of appeal as having no merit whatsoever. The
Tribunal looked carefully at the law relating to employment status and came to
a judgment that was open to it. This was a perfectly natural tripartite agency
relationship; the Tribunal addressed the relevant authorities (see the heading
“The Law” in the Judgment). As to disclosure, the Tribunal was bound to
dismiss the section 103A claim, since the Claimant was not an employee and
entitled to protection of unfair dismissal, and in respect of her employment
detriment claim the six layers of decision‑making by this Tribunal all
point against the Claimant. She must succeed on all of these in order to win
her case, and the Tribunal found against her on all of them on the basis of
cogent evidence. Put simply, the Claimant’s treatment was not to do with her
making any protected disclosure.
15.
As to the race and sex discrimination claims, with respect I regard
those claims as fanciful. They were articulated long after the Claimant left
the relationship, and, for the same reasons as the Tribunal, I would see no
merit in them. The burden of proof was not shifted by the Claimant to the
Respondent in respect of those claims, which were to do with the dismissal of a
named comparator of a different ethnic status and male, which the Tribunal
rejected on the basis of the facts. The claim that the Claimant was
discriminated against for organising a Christmas meal was dismissed on cogent
reasoning by the Employment Tribunal.
Costs
16.
I turn, then, to the costs application. The Tribunal came to the
conclusion that costs should be awarded because there was no legal basis for
the claims the Claimant was making. It is my sad duty to record that there is
considerable force in the Tribunal’s Judgment against the Claimant. Being a
barrister means that she should be alert to weaknesses in her case. A
barrister specialising in employment law and asserting her knowledge is
particularly open to scrutiny. The Tribunal considered that whether or not the
claim was made by a barrister it had no substance, and the costs warnings given
by the Respondent in advance should have been heeded. In its judgment, the Employment
Tribunal found the Claimant brought the proceedings and conducted them
vexatiously, abusively, disruptively and otherwise unreasonably. She made
unsubstantiated allegations that persisted up to the date of the Tribunal
hearing, and, I would add, up to today. Some ten years after the relationship
ended, she fails to pay attention to the orders of the court. The Tribunal
criticised the Claimant for making scandalous allegations against the
Respondent and the Tribunal; that is a matter of judgment for the Employment
Tribunal.
17.
The Court of Appeal in three cases recently has looked at the approach
of the Employment Tribunal to costs (see Barnsley v Yerrakalva [2011] EWCA Civ 1255, Dean & Dean v Dionissiou-Moussaoui [2011] EWCA Civ 1331 and Arrowsmith v Nottingham Trent University [2011] EWCA Civ 797). In all of these cases the Court has been at pains to point out that
these are matters for an Employment Tribunal to resolve and will rarely be
disturbed on appeal, notwithstanding the actual outcome in the Yerrakalva
case. My approach to costs is described in the Court of Appeal in Arrowsmith;
I see no error in the award of costs in this case, and I would therefore
dismiss the application in respect of the costs hearing as, again, having no
merit whatsoever, which means that there will be no further action on either of
these appeals.
Conclusion
18.
I repeat what I said when Miss Jackson was last before me, which is
that this Judgment will obviously be a great disappointment to her. She has presented
her case carefully to me today both orally and in writing. Nevertheless, this
long campaign by the Claimant, as described in those words by the Tribunal,
must come to an end. The applications are dismissed and with them the
underlying appeals.
