Metha v. Ealing Primary Care Trust [2003] UKEAT 0050_03_2306 (23 June 2003)

JUDGMENT Revised APPEARANCES For the Appellant MR J METHA (the Appellant in Person) For the Respondent MR S NEILL (Solicitor) Instructed by: Employment Law Firm Ltd ELF House 48c Oaktree Road Marlow Bucks SL7 3EE HIS HONOUR JUDGE J BURKE QC This is an appeal by Mr Mehta, against Interlocutory Orders made in the Employment Tribunal sitting at Watford by Mr G M Pettigrew, a Chairman sitting alone, on 7 November 2002. Those Orders were made in the course of two sets of complaints, each under a separate Originating Application, made by Mr Mehta against the Ealing Primary Care Trust. They arose out of a period in which, on a basis which is very much in issue, in 2002, for a relatively brief period of time, Mr Mehta, to put it neutrally, worked as a doctor in the position of a Clinical Assistant at a hospital under the care of the Respondent Trust. The complaints brought by Mr Mehta in those two Originating Applications are set out in a document entitled ' Note of Discussion ' which accompanies the Tribunal's Order, although it may be that the list is not entirely comprehensive. According to that document, in the first Originating Application Mr Mehta made a complaint for the determination of what ought to have been included or referred to in a statement of terms and conditions of employment; that complaint, as I understand it from reading the papers, includes a complaint that he never had any contract of employment or statement of terms and conditions of employment. Secondly, he made a claim of unauthorised deductions from wages. Thirdly, he complained of race discrimination and victimisation, in both cases, of course, contrary to the Race Relations Act 1976 . Mr Mehta asserts that, in addition, he complained in the first Originating Application that he did not receive itemised pay slips or the equivalent as he should have done pursuant to law. According to the Tribunal, in the second application he complained of wrongful dismissal, of unauthorised deduction of wages, of unlawful racial discrimination and of victimisation. Mr Mehta says that he also complained of a failure to provide him with written reasons for dismissal. I do not intend to decide whether those additional claims were or were not claims which fell within the Originating Applications. It is not necessary to do so. I shall proceed, for today's purposes, on the assumption that they were. In order to be entitled to succeed in some of those claims Mr Mehta needed to establish that he was at the material time an employee of the Trust within the definition in section 230 (1) of the Employment Rights Act 1996 . Under that Act, an employee is defined as 230 (1) "…an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment." The Act distinguishes between an employee on the one hand and a worker on the other hand, a worker being defined in section 230 (3). So far as the complaints in relation to particulars of terms and conditions of employment is concerned, it is accepted by Mr Mehta that that complaint is one in respect of which the Tribunal only has jurisdiction if he was an employee. The same applies to any complaint in relation to itemised pay slips. On the other hand, his complaint of unauthorised deductions from wages can proceed, even though he was not an employee, on the basis that he was a worker, it being conceded by the Trust that although, not under any continuous contract, at least from time to time Mr Mehta was a worker for the purposes of the Employment Rights Act 1996 . It is accepted that his complaints in the first and second Originating Applications that he had been the victim of race discrimination and victimisation may proceed to a hearing on their merits, irrespective of whether Mr Mehta was an employee, because the provisions of Part II of the Race Relations Act 1976 , rendering unlawful discrimination in the employment field, apply to those who work under a contract to provide personal services as well as under a contract of employment; in other words, to workers as well as employees; and it is not necessary for the purposes of those complaints to determine whether Mr Mehta was an employee. However, any complaint in relation to failure to provide reasons for dismissal and his complaint of wrongful dismissal, which would have to be a complaint brought under the Employment Tribunal's Extension of Jurisdiction (England & Wales) Order 1994 , would require proof that Mr Mehta was an employee at the relevant time. Thus, a substantial number of the complaints which Mr Mehta has brought can only succeed (and indeed there is only jurisdiction in the Tribunal to hear those complaints) if he was an employee. To put it another way, whether the issue is one of jurisdiction or not, proof that he was an employee is a necessary condition before, on the merits of any of those complaints, Mr Mehta can win. Mr Neill on behalf of the Trust tells me, and I accept (and Mr Mehta has not sought to suggest otherwise) that the Tribunal was concerned for a further reason to establish, before entering on the merits of any of his complaints, whether Mr Mehta was an employee or not, namely because in considering his complaints of discrimination it might be important to know his status in order to identify who, if anyone, should be the live comparators with whose cases Mr Mehta's case should be compared. The Tribunal decided, at the hearing of 7 November, that there should be a Preliminary Hearing to determine whether Mr Mehta was an employee of the Trust within the meaning of section 230 of the Employment Rights Act 1996 . The Chairman then proceeded to make an order that the two sets of complaints in the two Originating Applications be consolidated. There is no dispute about the good sense of that order; and although Mr Mehta in various documents says that he is appealing against the whole of the order which was made by the Tribunal, in fact he accepts that the consolidation order was rightly made; indeed it was an order he says with which he agreed at the time. The Tribunal then went on to make orders relating to time table. Mr Mehta did not accept that the Tribunal were correct in some features of the time table which the Chairman set out; but for today's purposes nobody has based any arguments on the time table because that time table has gone into suspense as a result of this appeal. The dates which the Chairman set have long since passed. The dates are now meaningless; and it is plain that if this matter does go ahead, whether on a preliminary issue basis or not, a new time table will have to be set. Thus, the fundamental issue which I have been asked to decide on this appeal is whether the Tribunal made any error in law in making the order that there should be a preliminary issue of the nature which I have described. It is important to note the way in which I have just put that issue. The Employment Appeal Tribunal, in an appeal such as this, does not embark on a reconsideration of the merits of the order which the Tribunal made. The Tribunal, in making such an order, was exercising a case management power. The Tribunal had, in exercising that power, a wide discretion. The Employment Appeal Tribunal will only interfere with such an exercise of discretion if it is shown that the Tribunal has in some way erred in law or has come to a perverse conclusion in that they have come to a conclusion which omits some material fact, includes as material some fact which was not material or amounts to a decision to which no reasonable Tribunal could have come. During the course of the hearing of this appeal I have sought to discover from Mr Mehta why he has an objection (and obviously a deep-seated objection) to the order for a preliminary issue. He has said to me more than once, and indeed he has said the same in his detailed written submissions set out in his Notice of Appeal, in his original Skeleton Argument, in an amended Skeleton Argument which was sent to the Tribunal on 18 June and which I saw for the first time this morning, and in an affidavit, the circumstances of which I will come to, that his principal concern appears to be that the preliminary issue does not embrace his case of discrimination and his case of unlawful deduction from wages. At one stage I thought that Mr Mehta was saying that there ought to have been a preliminary issue as to those matters as well; but I think in the end I was able to satisfy myself that that was not what Mr Mehta was saying. What he was saying was there should never have been any preliminary issue ordered at all, not because he was concerned (as again I thought at one moment) that somehow if he lost the preliminary issue his race discrimination claims, his victimisation claims, his unlawful deduction claims, would somehow go away or disappear or fall outside the jurisdiction of the Tribunal, but because he says that he would have preferred (and he used that word several times) one hearing alone at which all matters were dealt with, both matters of status and matters of merit and substance. He submits that there will have to be a full hearing on the merits of the claims under the Race Relations Act 1976 and the unlawful deduction claims in any event (as is certainly true), that the issues involved in deciding a preliminary issue would require evidence which would also be evidence which would be relevant to the merits of the complaints which are not subject to a preliminary issue, that therefore all matters should be dealt with at once to avoid wasted costs and duplication of evidence. He submits that the preliminary issue could not possibly bring the whole proceedings to an end and thus in effect the proper exercise of discretion by the Tribunal would have been and should have been one in which no preliminary issue was ordered. Before going any further, I should record that Mr Mehta, in his Notice of Appeal, made allegations which plainly were allegations of bias or misconduct on the part of the Chairman. The result of that was that he was ordered to provide an affidavit setting out and verifying those allegations which could then be provided both to the Chairman for his comments and to the Trust for their response. That affidavit was sworn, the Chairman provided comments on 7 April 2003; and Mr Neill who represented the Trust before the Chairman, as he does before me today, swore an affidavit in response on 3 June. In his Skeleton Argument, which is dated 4 June, at paragraph 22, Mr Mehta says (although he prefaces this with the words "without prejudice"): "The Applicant withdraws his complaints of bias, prejudice, oppression, arrogance and misconduct levelled against the Employment Tribunal and/or the Tribunal Chairman." Mr Mehta having reminded me that he had withdrawn his complaints, I have not heard any more argument about them; and I make no further reference to those complaints or criticisms of the Tribunal in the course of this judgment. Mr Mehta's complaints today are put in the way in which I have described them. I have not sought to set out all that Mr Mehta has set out in the various documents which I have referred to; but it seems to me that the gist of them is there expressed. Mr Mehta has set out, particularly in his original Skeleton Argument, a great deal of detailed argument about the law of discrimination and has reminded me that discrimination is a serious issue. None of the details of the law of discrimination are relevant, in my judgment, to the decision which I have to make today. I made clear to Mr Mehta during the course of argument and I say again in the course of this judgment that the Employment Appeal Tribunal always regards any form of discrimination as a serious matter; and I would so regard any discrimination, if proved, in this case. Any allegation of discrimination is always taken very seriously by the Employment Tribunals. There is nothing to suggest that the allegations which Mr Mehta makes of discrimination, and indeed all his other allegations, where he is qualified to make the complaints which lead to those allegations, will not be fully examined on their merits; but, I have no doubt that it was within the jurisdiction of the Chairman and within the discretion of the Chairman to order a preliminary issue as he did. In respect of a number of the complaints made by Mr Mehta, he cannot, as I have already said, succeed unless he proves that he was at the material time an employee. The employers, the Trust, say he was not an employee, but was a doctor on the bank who was called in to provide his services from time to time when needed. If he was not an employee, then those complaints which I have identified as requiring him to be an employee before he can succeed must fail and the Trust and the Tribunal should not be troubled with the cost and the expense and the time of having to deal with them on their merits, as would happen if all of these complaints were rolled together into one hearing without a Preliminary Hearing. That at least is a legitimate point of view; and whether I would have done the same or not as the Chairman did is wholly irrelevant. The question for me is whether what the Chairman did was, having regard to all the arguments put forward by Mr Mehta in the various documents which I have identified, an order which he could properly make in the exercise of his discretion. In my judgment he could properly so order. None of the arguments which Mr Mehta has put forward satisfies me or begins to satisfy me that there was any error of law on the part of the Chairman in reaching the decision that he did. I should mention one particular point that has been raised, namely that the Tribunal did not give reasons. The Tribunal was not making a decision, it was making interlocutory orders. The provisions in the Rules for Summary and Extended Reasons do not apply to interlocutory case management orders. In any event, the reasons sufficiently appear, if reasons were necessary, from the very facts themselves. It is plain on the face of the documents that there was a number of complaints made by Mr Mehta which could not succeed if he was not an employee. It was entirely appropriate in all the circumstances, in my judgment, for the Chairman to conclude that a preliminary issue to decide whether or not he was an employee was necessary. If, as is said, the Chairman was also pressed with the argument that it was necessary to establish whether Mr Mehta was an employee for the purpose of ascertaining who were the correct comparators for the purposes of the discrimination claims, that would be another reason supporting the Chairman's conclusion but, entirely without that, one can clearly see why any reasonable Tribunal might well have come to the conclusion that this Tribunal did. I have not mentioned all of the arguments that Mr Mehta has put forward in his documents. I assure him that I have considered each and every one of them; but I have no doubt, as I have said, that the Chairman came to a conclusion which he was entitled to reach and which contained no error of law. The appeal is therefore dismissed. I have to mention one other matter, however. Mr Mehta has said that, at the hearing he applied for an extension of time in which to deliver a questionnaire under the Race Relations Act 1976 . Mr Neill says that no such application was made. Certainly the Tribunal did not make any order either granting or refusing such an application. Mr Mehta's desire to have such an extension of time is mentioned in his Notice of Appeal. That does not mean that he actually made an application for such an extension before the Chairman. I cannot decide whether he did or did not make such an application. I cannot rule as between the parties on a disputed issue of fact such as that. What I can say is that no such application has been adjudicated upon and therefore it is still open to Mr Mehta to make such an application now or at the hearing of the preliminary issue whenever that should occur; and, if he wants to pursue that matter, those are the ways in which it is open to him to pursue it. I therefore dismiss this appeal. Plainly the matter will have to go back now to the Tribunal for further directions for the hearing of the preliminary issue and the setting of a new timetable. I am told by Mr Neill that there are now two other Originating Applications arising out of the same work history. If that is so, then it is all the more necessary for the Tribunal to have another directions hearing at which it can make case management orders so as to bring all these applications into line, deal with them in a pragmatic way, so as to reach a determination of them one way or the other as soon as may be possible. Argument as to Costs After I had given judgment in this case, Mr Neill on behalf of the Respondent has asked for the Respondent's costs of this appeal, which I have dismissed on the basis that the appeal showed no error of law on the part of the Chairman in making the decision which has been that which has been the subject of attack today. Mr Neill submits that the appeal was unnecessary, improper, or was unreasonably brought because it had no merit and it was vexatious, at least in part, in that substantial allegations of bias and misconduct on the part of the Chairman were made, requiring affidavits, comments from the Chairman and matters of that kind, only for it to turn out that those allegations were withdrawn by the Appellant, Mr Mehta, in the way in which I have described in my judgment. Mr Neill puts his total costs at £1,260 plus VAT. Mr Mehta says that it would be wholly unjust to order costs. His case, he says, was all about unlawful deduction of wages, and I'm sure he would add to that discrimination and victimisation which he has found distressing, damaging and traumatic. He says that he has sent everything to the Trust to enable them to settle his wages claim, though they say, of course, that there is not any wages claim, that they have paid him all that they owed him; and that dispute depends, at least to some extent, on whose evidence of what was arranged between the parties is eventually believed. In my judgment this appeal was and has been from its start wholly without merit. It was unnecessary. It was unreasonable of Mr Mehta to bring this appeal. He says that he was disabled by depression and by the effects of what had happened to him. I have seen no medical evidence although I am prepared to accept that, to some extent, that is true. He says that he has been to the Citizen's Advice Bureau and to solicitors and that they were unable to help him. Whether they were unable or unwilling to help him I know not; but I have little doubt that they discerned that there was no merit in the appeal and that there was in reality nothing to appeal about. It was, in my judgment, vexatious of Mr Mehta to allege bias and misconduct on the part of the Tribunal in numerous different ways which then set in train the process which follows from such allegations, only for him then to withdraw those allegations on 4 June, three weeks or so before this hearing. Mr Neill says that 50-75% of his costs have been incurred in dealing with those bias allegations. Mr Mehta says that he was not well when he made them and he has realised, when wiser counsels have prevailed within his own mind, that it was better not to pursue them. But having raised them, they have undoubtedly incurred a great deal of trouble and costs on the Trust's side. I said that I take the view that it was unnecessary to bring this appeal and that it was unreasonable to bring it; and that in relation to the bias allegations it was vexatious to make and pursue them. However, I do not think that it is fair, having regard particularly to Mr Mehta's financial position, which is one of somebody who is unemployed with a family, to order him to pay all of the costs, even though they are relatively modest. I am going to order that he pay £750 towards the costs of the Respondents. Argument as to Review After I had given judgment in this appeal and then given judgment on Mr Neill's request for an order for costs in favour of the Trust and had decided that Mr Mehta should pay £750 towards the Trust's costs of this appeal, Mr Mehta has asked me to review that costs decision. Rule 33 (1) of the Employment Appeal Tribunal Rules 2001 says that: 33 (1) "The Appeal Tribunal may, either of its own motion or on application, review any order made by it and may, on such review, revoke or vary that order on the grounds that— (a) the order was wrongly made as the result of an error on the part of the Tribunal or its staff; (b) a party did not receive proper notice of the proceedings leading to the order; or (c) the interests of justice require such review." I have indicated to Mr Mehta that I was prepared, without opposition from Mr Neill, to treat his oral application to me as an application under Rule 33 (1) of the Employment Appeal Tribunal Rules 2001 for a review. I have heard argument upon that application from Mr Mehta and from Mr Neill. Obviously grounds (a) and (b) do not apply. Mr Mehta puts his application on ground (c), namely that the interests of justice require such a review; and the point that he makes in terms of justice is that it would be gravely unjust to him to adhere to my order that he pays £750 by way of costs to the Respondent because he is unemployed, he is receiving only £54 per week as Job Seekers Allowance, he has no property; he has a family in Canada, a wife and three children. They are supporting themselves, he is not supporting them; but he is obviously a man who has very little means indeed and it would be a very great hardship to him to have to pay costs pursuant to my order. Mr Neill has pointed out to me, and I made no reference to this in my judgment on the costs issue, that when this appeal was dealt with in chambers by His Honour Judge McMullen QC on 15 January 2003, just over two weeks after the Notice of Appeal was received on 31 December, the appeal was set down for a full hearing and Mr Mehta was directed to provide an affidavit supporting his allegations of bias and improper conduct in paragraph 6 of the Order. In that Order, highlighted in italics, appear these words: " Unsuccessful pursuit of an allegation of bias or improper conduct may put an appellant or cross-appellant at a risk of a costs order. " Thus, as long ago as January Mr Mehta was specifically warned that if he pursued his allegations of bias or improper conduct he would be at risk of a costs order and he nonetheless pursued them until he withdrew them on 4 June, causing at least 50% and somewhere between 50% and 75% of the employers' costs. I have actually ordered Mr Mehta to pay £750 against a total figure claimed by the employers of £1,260 plus VAT. So I have ordered just over 50% of the total sought by the Trust. In making my order for costs as I did, I had specifically in mind Mr Mehta's financial hardship and so said at the time. Nothing new has come from what Mr Mehta has said in support of this application for a review, save my learning that his family in Canada is self-supporting and that he is not actually supporting them himself. But whether that is a fact or not he is plainly in a position of financial hardship. Nonetheless, having regard to the express warning that he had in the Order and having regard to the fact that this appeal was, in my judgment, one which had at no time any prospect of success, I see no reason in the interests of justice to depart from or vary in any way the order as to costs which I have made. I therefore reject this application for a review. 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