Appeal No.	 EAT/0253/03/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 June 2003

Before
MR RECORDER LUBA QC
MR P M SMITH
MR J C SHRIGLEY

MR J J BRADFORD	APPELLANT

GMB TRADE UNION	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING EX PARTE

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE APPELLANT	

MR RECORDER LUBA QC

1	We have before us a Preliminary Hearing of an appeal brought by Mr John James Bradford against a decision of the Employment Tribunal at Manchester.  For reasons that he has explained to the Employment Appeal Tribunal office, Mr Bradford is not able to attend at the Preliminary Hearing of his appeal.  The appeal has been set down for an Ex Parte Hearing, that is, a hearing in the absence of the Respondent.  However, the Respondent has put in a written submission in accordance with the direction of Mr Commissioner Howell and we are grateful to the Respondent, the GMB Trade Union, for the content of that written submission.  

2	Before turning to the facts of the case it is important to emphasis that Mr Bradford has lost nothing in the consideration of his case by his non-attendance before us today.  He has submitted for this Preliminary Hearing a letter dated 1 June 2003, we have his grounds of appeal and we have, of course, a bundle of other documents before us.  We have each carefully considered these documents in preparation for consideration of this Preliminary Hearing.

3	We turn now to the background factual situation.  Mr Bradford was in employment with the GMB Trade Union at its college, its education college.  That is described in the papers before us as the GMB National College.  It is not disputed that Mr Bradford began employment with the college as a tutor in April 1994 and that on 1 September 1997 he became a full time employee.  The case before the Employment Tribunal was a contention by Mr Bradford that the employer, the GMB Trade Union, had been guilty of unlawful sex discrimination.  That complaint the Tribunal described as not well founded and the complaint was dismissed.  Moreover, the Applicant was ordered to pay the Respondent an amount of costs in the sum of £881.25.

4	The Tribunal had before them a complaint, presented by the Applicant, asserting that he had been the victim of sex discrimination in that he had done a “protected act”, namely, raising a grievance and bringing Employment Tribunal proceedings in relation to sex discrimination, as a result of which he had been victimised.  The victimisation complained of was, to put it very shortly, the failure of the GMB (or various parts of its organisational structure) to consider and see through to a conclusion a grievance, or series of grievances, that he had raised in accordance with the contractual terms of his employment.

5	Having regard to the date on which his complaint was presented (1 December 2000), the Tribunal were looking at matters fairly close in time to the submission of the complaint itself.  However, as their Extended Reasons make clear, the Applicant attended at the Employment Tribunal fully intending to rehearse matters relating to his employment status pre-1994, and indeed, subsequently between 1994 and 1997.  The latter period is relevant because it is the period when the Applicant was, in what the employers contend was, part-time employment.  

6	The Employment Tribunal set out comprehensive findings of fact at paragraph 
8 onwards of their Extended Reasons.  Those findings of fact review, in outline, the history of matters between the Applicant and his employers from the mid to late 1990s up to the date of the hearing before them.  The focus is, of course, on the protected acts said to be causative of subsequent victimisation of the Applicant.  It is right to record that the preface to those findings of fact is an assessment of the Applicant’s own evidence which incorporates expressly a finding that:

“… his evidence was in many places and in respect of important matters exaggerated, misleading or even untruthful.”

7	It is quite plain that the Tribunal felt that the real gravamen of Mr Bradford’s case was concerned with a grievance he had instigated, with others, about his pre-1994 employment status and his status between 1994 and 1997.  As the Tribunal record, at paragraph 11 of their Extended Reasons, the employers have a 4 stage grievance procedure.  The first 3 stages of that grievance procedure had been activated and concluded in relation to the underlying complaint (in relation to the pre-1994 circumstances and the situation between 1994 and 1997).  The grievance had not reached stage 4.  

8	That is probably all we need to say by way of background to the case.  The Extended Reasons given by the Tribunal show, fully, how it is that they reached the conclusion that they did, that the complaint of the Applicant was not made out.  We commend the thoroughness of their approach and their keen attention to detail.  Having set out the whole history of the matter, they direct themselves to the relevant law at paragraphs 70-72 of their Extended Reasons.  They reach clear conclusions expressed in 3 pithy paragraphs - 73-75.  

9	Mr Bradford pursues an appeal to this Employment Appeal Tribunal. We are concerned only to detect and eradicate errors of law made by an Employment Tribunal.  Mr Bradford contends that there have been errors of law by this Employment Tribunal in its handling of his complaint.  He has formulated his Notice of Appeal into some 29 pages, most of which contain closely typed script.  The multi-page document is not organised by pagination or sequential paragraph numbers and is exceptionally difficult to follow.  It is nigh on impossible to distil from it, with any precision, what is said to be the error of law made by the Employment Tribunal.  We commend the Respondent for the attempt they have made in their written submissions to pare down the very extended document put forward by the Appellant in order to ascertain what are the contended for errors of law.  

10	We will, in due course, in this judgment, do our best to deal with the general points raised by the Notice of Appeal, but one matter cries out for immediate comment.  That is, that this Notice of Appeal, on its face, is a singular attempt to re-run before this Employment Appeal Tribunal all or most of the substantive issues run before the Employment Tribunal.  This is a classic example of an employee, or Applicant, seeking to re-run a case as it was before the Employment Tribunal but to seek a different result from this Employment Appeal Tribunal.  It is, in those circumstances, not surprising that it is difficult to detect any discrete errors of law.

11	Doing the best we can, therefore, we turn to the Notice of Appeal.  It is said, most importantly, in the Notice of Appeal that the Tribunal below misdirected itself in applying the important principles laid down by the House of Lords in Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830.  In that case the House gave useful guidance to Employment Tribunals as to the correct manner of dealing with complaints of victimisation by reason of an earlier protected act.  We have carefully examined the Employment Tribunal’s decision, comparing it with the principles to be derived from the West Yorkshire Police case.  We can detect no error, not even an arguable error, in the approach taken by the Tribunal in this case.  It is plain, as it has throughout been plain, that there were matters capable of constituting protected acts, that is, complaints of discrimination and complaints which were brought within the jurisdiction of the Employment Tribunal.  

12	The question is, and was for the Tribunal, whether, as a result of those matters, the Applicant received less favourable treatment.  Again, a multiplicity of detail is given by the Appellant in his Notice of Appeal.  None of it even begins to set out an arguable ground for establishing that there was less favourable treatment, or that the Tribunal was perverse in reaching the decision that there had been no less favourable treatment.  

13	In essence what was asserted by the Appellant, and is repeated in his grounds of appeal, is that the GMB Union refused to pursue grievances that he has generated because they were linked to the original grievance which had never achieved stage 4 of the procedure.  The Employment Tribunal found that this was the case.  The Tribunal’s conclusions are, as we have already referred to, at paragraphs 73-75.  In paragraph 73 we have this conclusion:

“The respondent refused to permit further grievances to be pursued because those grievances were connected to the original grievance and the applicant and the other tutors were unwilling to allow the existing grievance to proceed to stage 4.”

That is the ultimate rung of the grievance procedure.  The Tribunal expressly conclude in paragraph 73 that the Applicant has not established the causal nexus between his Tribunal proceedings, which were related to sex discrimination and which were dismissed, and the actions of which he complains.  They say:

“On the contrary, the respondent has more than adequately explained why it acted as it did in relation to the applicant’s grievances.  It has broken the chain of causation which must otherwise be established.”

Those are, in our view, the clearest possible conclusions and they are amply justified on the earlier findings of fact made by the Employment Tribunal.  

14	Although the Tribunal did not expressly need to do so, it did revisit the contentions made by the  Applicant as to what had occurred at stage 3 of the procedure and the content of a decision or notification made by the relevant body of the GMB at stage 3.  The Tribunal commented, on the basis of material before them and material which in our view they were entitled to rely upon, that the stage 3 level of the grievance procedure had not reached a concluded view in the Applicant’s favour on the pre-1994 contract matters, or, insofar as it was seized of them, the matters relevant to the period up to September 1997.  Again, we can see no arguable error of law, notwithstanding the voluminous criticism by the Applicant of the Tribunal’s conclusions on that point.  

15	Suffice it to say, therefore, that we have unhesitatingly concluded that there is nothing in the Notice of Appeal that even gets to the starting point of demonstrating any arguable error by the Tribunal in this case.

16	Quite separately and discreetly, the Appellant appeals against the award of costs made against him by the Employment Tribunal.  The Respondent had asked the Employment Tribunal to award them all of the costs of the proceedings, and indeed, to make a maximum award of £10,000.  That was on the basis that these proceedings (for a remedy for victimisation by reason of sex discrimination) were simply yet another disguised attempt by the Applicant to reopen the original grievance concerning his pre-1994 employment status.  That matter, in the Respondent’s contention, would be properly dealt with by going to point 4 of the grievance procedure.  That the Applicant had never done.  

17	Notwithstanding the compelling way in which the Respondent’s application for costs appears to have been put, the Tribunal did not, contrary to Mr Bradford’s grounds of appeal, find that this was a case which had been misconceived or was a vexatious case properly attracting an award of costs.  Rather, costs were awarded against the Applicant by reason of his unreasonable conduct which had caused the proceedings, in the Tribunal’s view, to become unduly lengthened.  In the passage of their Extended Reasons dealing with costs, at paragraphs 76-78, the Tribunal find that the conduct by the Applicant of his case came:

“… at times close to an abuse of process.  Frequently throughout his evidence and his examination of the respondents’ evidence it was clear that he was not litigating a victimisation claim, but was trying to establish his employment status pre-1994 or the correctness of his interpretation of the November 1999 JNC “decision”.  The Tribunal also had to spend considerable time dealing with his various applications during the course of the hearing and making associated rulings.”

Having made those findings, the Tribunal directed themselves to the proper exercise of their power of Rule 14 of the Rules of Procedure and decided that the Applicant had conducted the proceedings unreasonably to the extent that he had caused them to be lengthened by at least one day.  The Tribunal found that the appropriate order for costs was to the extent of the refresher for the Respondent’s counsel of a fee of £750 for one day (plus VAT) making a total of £881 and odd pence.  As we have indicated, the grounds of appeal seek to attack that exercise of discretion.  

18	In our view, this award of costs was plainly within the discretion of the Tribunal.  It is quite impossible to categorise the matters set out in the Notice of Appeal in this respect as giving rise to any arguable case that the award of costs was perverse or in excess of the Tribunal’s jurisdiction or in any other way erroneous in law.

19	In all those circumstances we find nothing in the Notice of Appeal which is sufficient to require this case to be heard by this Employment Appeal Tribunal beyond the hearing which we have given it today.  None of the purported grounds of appeal in the Notice of Appeal are arguable.  In those circumstances this appeal is unhesitatingly dismissed.