Appeal No.	EAT/835/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 October 1997

Before
HIS HONOUR JUDGE H J BYRT QC
MR A E R MANNERS
MR S M SPRINGER MBE

MR D RICHARDS	APPELLANT

BRITISH COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON	

	JUDGE JOHN BYRT QC:     This is preliminary hearing in relation to an appeal against the decision of the Industrial Tribunal sitting in London (South), its decision being promulgated on 4 March 1997 when it dismissed Mr Richards’ application for unfair dismissal on the basis that he had never been employed by the Respondents.

	The issue involved in this case turns on the handbook which used to be handed out to guides like Mr Richards who worked for the British Council, the Respondent in this case.  The handbook contains a particular paragraph which talks about conditions of employment and retirement and then goes on to say:

“It must be clearly understood and accepted that Guides/Interpreters are engaged on a casual, part-time, day-to-day basis, and that there is no guarantee of continuity of employment or income.”

	It was precisely on that particular paragraph that the Industrial Tribunal originally found that Mr Richards was not employed and accordingly, dismissed his claim.

	In 1997, the dismissal was for other reasons, namely that the matter had been previously decided and secondly, the application was way outside the time limits.  There were no grounds for extending the time.

	The history of the matter is as follows.  Mr Richards had been working for the British Council for a period of a number of years and the evidence was that he used to be called up by the British Council to undertake various work, something like four days a week.  That came to an end in circumstances we have not been acquainted with and Mr Richards took proceedings in the Industrial Tribunal alleging wrongful dismissal in 1979.  On 20 July, by a decision of that date, the Industrial Tribunals decided that he was not employed.

	Mr Richards then commenced proceedings yet again.  Instead of appealing, he commenced proceedings on 7 September 1979 alleging the same facts and claiming that he had been employed.  That matter came up before an Industrial Tribunal in March 1980 as an interlocutory matter and they dismissed the claim on the basis that it had been already decided by an earlier Tribunal.  The Tribunal applied the doctrine of res judicata.  This undoubtedly caused Mr Richards a deep sense of grievance because he said, “here was a matter which was decided in his absence, he never had the opportunity of putting his case.  He did not even know of the proceedings or the circumstances which gave rise to the decision”.

	In any event, at that particular stage, he did nothing further about it, that is until the decision was given in the case of Ford v Warwickshire County Council, [1982] IRLR 246.  This showed that, in circumstances similar to those of Mr Richards’ engagement with the British Council, a contract of employment had been spelt out.  The result was that in March 1983 he made an application to the Industrial Tribunal for a review but the Regional Chairman dismissed it.  He then appealed to the Employment Appeal Tribunal which gave its decision on 5 May 1983.  The hearing was before Tudor-Evans J and two members.  We have read the decision, given on that occasion and although Tudor-Evans J expressed the view that the case of Ford v Warwickshire County Council gave Mr Richards an arguable point of law, they decided that they could not grant him the extension of time for filing his claim in view of the fact he was now several years out of time.  Accordingly, they dismissed it.  In his decision Tudor Evans J quoted from a note to RSC Order 59, Rule 14, sub-paragraph 3.  It says:

“It is entirely in the discretion of the Court to grant or refuse an extension of time.  It may, for example, be granted where the omission to appeal in due time was due to a mistake on the part of a legal adviser.  The fact that the Court of Appeal has in a subsequent case taken a different view of the law from that of the court below is not of itself a sufficient ground for an extension of time for appealing, but the circumstances as a whole may justify it.”

	Having considered that proposition, having expressed considerable sympathy with Mr Richards’ case, the Tribunal decided that, applying well established principles of law, it was not right to grant an extension of time for appealing.

	But that is not an end of the matter because in March 1994 there was another important decision in the House of Lords of Regina v Secretary of State for Employment, ex parte Equal Opportunities Commission [1994] ICR 317.  That was a decision delivered on 3 March 1994.  It gave Mr Richards further hope that his particular arrangements with the British Council might be the basis of a finding of a contract of employment.  On the strength of it, he made the current application on 18 March with commendable speed.  In addition to that he also added claims for sexual discrimination and breaches of the Equal Pay Act.

	Suffice it to say that once more the Industrial Tribunal came to a decision that the fundamental issue at stake had been decided by the Tribunal long ago, and, further that the termination of the employment upon which Mr Richards had to base his case again had happened some 17 years ago.  On both those counts the Industrial Tribunal came to the conclusion that it would be wrong to allow Mr Richards to advance argument yet again over the same point which had been previously decided twice before.  It decided that this latest case was not a ground for granting an extension of time.

	Mr Richards referred us to two cases which have been decided in 1996.  The first is that of Biggs v Somerset County Council  [1996] ICR 364 where once more, on the facts of the case, the Court of Appeal declined to grant an extension of time.  The claimant had been dismissed in 1976, but following a decision in the House of Lords, the claimant commenced proceedings in June 1994.  The Court of Appeal declined to find that the later decision clarifying the law, was a ground which warranted an extension of time under Section 67(2) of the Employment Protection (Consolidation) Act 1978.  The case of Staffordshire County Council v Barber [1996] ICR 379 was a case which essentially turns on res judicata.  The claimant there had made a claim but at the hearing had withdrawn the claim with leave of the Tribunal.  In that case it was held that granting of that leave was a judicial decision which effectively barred any further proceedings in relation to the same cause of action.  It was a specific application of the doctrine of res judicata.  The significance of that particular case, so far as we can see, is a passage in the judgment of Mummery J, as he then was, President of this Tribunal, where he states at page 386:

“...  The general rule is that, if a court of competent jurisdiction has reached a final and conclusive decision on the merits of a case, it is against public policy to allow it to be reopened (save on an appeal), even if that decision appears to be wrong in the light of the law as then understood or as subsequently evolved and clarified by judicial decision.  The injustice and inconvenience which would flow from allowing relitigation usually outweigh the injustice of leaving even an erroneous decision undisturbed.”

	This is a quote which is applicable in this case which was decided on 20 July 1979 and from which there was no appeal at the time.  There have since been two subsequent sets of proceedings, commenced on exactly the same grounds, namely a claim for unfair dismissal, the latest claim being started in March 1994, some 15 years after the event.  It is, in our view, inconceivable that any court would be willing to exercise its discretion to grant an extension of time to permit the commencement of proceedings so long after the event.

	Mr Richards, who has attended before us today and argued with courtesy and clarity, notwithstanding the fact that he has been feeling unwell, is obviously reluctant to accept the final decision of the court.  I have to say that this is now the third occasion on which he has commenced proceedings and on each occasion he has been met by the court putting forward the same proposition, namely this matter has previously been decided.  We cannot, according to the rules of court, allow this matter to be re-opened, even if he is able to show that the earlier tribunal, the earlier court, was erroneous in its interpretation of the law.

	We hope that Mr Richards will not commence proceedings for the fourth occasion.  He may appeal higher if he thinks we are wrong in this decision, but to commence further proceedings before an Industrial Tribunal would be wrong, a waste of time, and inviting trouble.  We hope he will take this advice in the spirit in which it is offered.