Appeal No.	EAT/1206/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 January 1999

Before
HIS HONOUR JUDGE C SMITH QC
MR K M HACK JP
MR D J JENKINS MBE

MR K R REEVES	APPELLANT

1) LONDON BOROUGH OF HAVERING	RESPONDENTS
2) GAYNES SCHOOL	

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR K REEVES
(In Person)	

	JUDGE C SMITH:	I am going to give a judgment on this matter now although we are going to give limited leave to appeal - that is the reason why we are giving a judgment, because it is limited.   We have had to consider here a difficult application.  Difficult in the sense that Mr Reeves, the Applicant, has acted in person in what are difficult matters and he has used a huge amount of documentation.   We do not criticise him for that but some of it is quite difficult to digest.   Let us try and resolve it in to some sensible form.

	What we have had to consider today is whether we should give Mr Reeves leave to proceed to a full hearing against a decision of the Chairman, sitting alone, of an Industrial Tribunal at Stratford on 22 June 1998, of which extended reasons were sent to the parties on 6 July 1998 whereby the Applicant’s entire complaint was struck out as being frivolous and vexatious.   That was the decision of the Industrial Tribunal and the Respondents’ notices of appearances were not struck out and the Applicant was ordered to pay £500 to the Respondents in respect of their costs.

	The way in which the Tribunal approached the matter is very clear from the Chairman’s decision.   The Chairman noted, in paragraph 1, that originally the Applicant had been employed as a maths teacher until his employment terminated on 31 August 1997 and the claim was rightly characterised by the Chairman as being one for damages for breach of contract of employment.   The Chairman noted that originally there was going to be a full merits hearing commencing on 22 June and it was thought that it was going to be a very long hearing - a ten day hearing.   But then the Chairman took the initiative to notify the parties that an application that was by then being mounted by the Respondents, The London Borough of Havering and the governing body of Gaynes School (the school where the Applicant had been employed) to strike out the Applicant’s complaints and, on the other side of the coin, his applications to strike out their notices of appearance were going to be dealt with as preliminary issues.   There was notice given to Mr Reeves that that was how the matter was going to proceed before the Tribunal.

	We must clear out of the way at this stage the first point of appeal.   Mr Reeves seeks to say that that was a wholly improper, perverse and erroneous way for the Industrial Tribunal to proceed.   The Chairman should never have embarked on a strike-out hearing in a case as difficult and as complicated as this - so the argument runs.   Mr Reeves has cited a great deal of authority which he submits would support that proposition and he has also set out quite a lot of material which carries the burden that he was ‘taken by surprise’ by this tactic, that is how he would describe it.   The burden of proof was reversed, so to speak, so that the Respondents were able to open the case and, in this way, as a litigant in person, he was severely disadvantaged.

	We are quite satisfied, having looked at the matter as carefully as possible, that the Chairman was entitled to take the view that she should deal with these matters as preliminary issues.   It must be a matter for her discretion whether to do so or not and we are quite satisfied that the discretion was properly exercised.   So we do not allow the matter to go forward on a full appeal on the first basis put forward by Mr Reeves in his skeleton argument - which in fact is particularised at paragraph 9 of his skeleton argument - we do not allow that ground of appeal.

	Then we must deal briefly with the way in which the Industrial Tribunal proceeded.   The Chairman analysed the claim that was being made in paragraph 3, namely that there was an alleged breach of contract on the part of the Respondents either by failing to appoint Mr Reeves as head of the mathematics department or by failing to grant him the opportunity to apply for that post, or, in the further alternative, by failing to allow him to prosecute his grievance under the grievance procedure in his contract.   That was a correct analysis - with respect to the Chairman of the Industrial Tribunal - although our understanding of the matter is that Mr Reeves was not actually maintaining that he should have been appointed, i.e. that it was a breach of contract not to appoint him, but he certainly was maintaining that it was a breach of contract to fail to give him the opportunity to be appointed.   That is really an unimportant distinction, it is simply an observation we make as we go along.

	The Chairman then noted that there was a complaint by Mr Reeves, in fact in paragraph 36 (d) of his Originating Application, that the head of Gaynes School, as it was put shortly by the Chairman, had “acted ultravires the Education Reform Act 1988”.   The Chairman decided in relation to that that that was a matter over which she did not have jurisdiction, because it was more in the nature of an application for judicial review, which should be made elsewhere.   We will return to that a little later on in our judgment.

	The Tribunal then dealt with what, on our unanimous interpretation of Mr Reeves’ case, was by far the major plank of his whole case, particularly at paragraphs 8 to 12 of the decision.   That was the point that the equal opportunities policy, which the Respondents undoubtedly had expressed in one way or the other, ought to be incorporated into his contract by way of an implied term and that by the virtue of that policy he was contractually entitled to be afforded the opportunity to apply for the post.   In a nutshell that is what the submission was with which the Industrial Tribunal had to deal.   

	The Chairman noted there was no express provision in his contract entitling him to be afforded the opportunity to apply for the post;  that is dealt with in paragraph 5 of the decision.   The Chairman then got to grips with the question as to whether the various equal opportunity policy statements should be incorporated into his contract.   The Chairman considered a document she described as a document of 30 April 1991 and quoted an extract from that document at paragraph 8.   She concluded that it was a general statement applying to the community generally, that it was an indication of the aspirations of the first Respondent but it was wholly inappropriate for it to be incorporated.   That is what she decided in paragraph 8.

	The Chairman then looked at another equal opportunities policy and there has been a dispute before us as to whether she, in fact, correctly identified exactly which document she was then referring to.   However that may be the Chairman certainly made an accurate quotation from the document, there is no issue on that.  Once again, this is a general statement, as the Chairman held, indicating the aims of the first Respondent.

	The Chairman then went on to deal with the submission made that those policy statements should be incorporated.   She decided, having considered the authorities cited to her, particularly Alexander v Standard Telephones & Cables Ltd [1991] IRLR 286, at paragraph 12:

“Having taken these cases into account, I do not consider that the equal opportunities policy of the First Respondent is something of daily implication in relation to career development and promotion and is therefore not apt to be included as a term of the contract.   The equal opportunities policy is a statement of policy in general aspirational terms and does not contain contractual language.   It is therefore my decision that the first part of Mr Reeves’ claim is without any legal foundation and I strike out that part of his complaint as frivolous and vexatious under Rule 13(2)(d).”

	In our judgment the Chairman was fully entitled to examine the policy documents which were placed in front of her and decide for herself, in accordance with the tests laid down by Hobhouse J, as he then was, whether any particular part of that document is ‘apt to be a term of the contract’, as the learned Judge put it, if it is ‘inapt’ the correct construction may be that it is not a term of the contract.   That is in a situation where a document is expressly incorporated by general words and would obviously also apply where a document is otherwise one which could be incorporated.   There still has to be a test as to whether it is apt to be a term of a contract.   That must be a matter for the Industrial Tribunal to decide.   In our judgment the Chairman was entitled to conclude that these policy statements were not apt to have contractual effect as terms of the individual employment contracts.

	We accept that it may well be that an equal opportunities policy document could be said to have implication not just infrequently but frequently with regard to the overall relationship between teachers and staff but we consider the Chairman was right, in her description of the equal opportunities policy as being no more than a statement of policy in general aspirational terms and not as containing contractual language.   Accordingly, for those reasons, we disallow any appeal on the basis of what was paragraph 36 (b) of the Originating Application.

	It is clear to us from his Originating Application that Mr Reeves was seeking to argue that the equal opportunities policy which, we repeat, was at the heart of his case, had not only been incorporated in the way we have already attempted to describe and which was dealt with by the Chairman in the way we have described, but also that he sought to submit to the Chairman, we accept, in paragraphs 36(a) and (c), that the employers’ equal opportunities policy, or the school’s governing body’s equal opportunity policy, had been incorporated via the pay and conditions document, by which we refer to the school teachers pay and conditions document for 1995.

	We accept and proceed on the basis that the school teachers pay and conditions document no doubt does include a great deal of material which would have contractual effect and would impact directly upon and form part of the individual contracts of employment.   But, in our judgment, when it comes to the question of whether an employer’s equal opportunities policy, either set out in that document or set out in some other document referred to by that document, falls to be incorporated into a contract of employment such must be judged by the same test.   What we are satisfied about is that here again the reasoning of the Chairman for rejecting the inclusion of the equal opportunities policy via paragraph 35 of the terms and conditions of employment applies with equal force to any attempt to incorporate a very similar if not exactly similar statement of equal opportunities policy in the way in which it is sought to be incorporated either under paragraph 36(a) or (c) of the Originating Application.   In our judgment, realistically looked at, those two sub-paragraphs stand or fall with sub-paragraph 36(b).   The same reasoning that the Industrial Tribunal Chairman, in our view, rightly followed, would be equally destructive of the claims made under sub-paragraph 36(a) or (c).   Accordingly, for those reasons, we do not allow leave to the Applicant to raise, on appeal, either sub-paragraph 36(a) or (c).    

	The way in which Mr Reeves wished to put it was that the Chairman erred in failing to consider those arguments at all and therefore her decision was flawed, in failing to deal with material arguments which were placed before her.   We accept that there is no direct reference to those separate arguments based upon the pay and conditions document but, for the reasons we have stated, we take the view that those arguments, had they been expressly considered by the Chairman would have been bound to have been rejected by her for the same reasons as were given by the learned Chairman for repeating the claim under paragraph 36(b).   Accordingly, for those reasons, we do not allow those matters to go forward.

	We then turn back to look again at the decision, expressed in a few lines and, we add, it may be none worse for that, where the Chairman held, at the end of paragraph 3, that the question of whether:

“...the Head of Gaynes School had acted ultravires the Education Reform Act 1988 is not a matter over which the Industrial Tribunal has jurisdiction.   [Because it] is more in the nature of an application for judicial review...”

	We quite see the force of that observation.   However we do note - as, of course, did the Chairman, no doubt - that there does appear to be an obligation now to be found in paragraph 12 of Schedule 14 to the Education Act 1996 which appears to be in exactly the same terms as the relevant paragraph of Schedule 3 to the 1988 Act, to the effect that the governing body of this particular school (applying this particular paragraph) appear to have been, arguably, under an obligation to advertise the vacancy of the head of maths post;  which is the very subject matter of Mr Reeves’ complaint.   They are required to do that unless particular circumstances prevail.   So it may be arguable that there was a non-compliance with that statutory obligation.   It may therefore be arguable that that may have given rise to a private law right of some kind at the suit of Mr Reeves, by way of breach of contract, for failure of the governors to comply with that statutory requirement.

	We only have to be satisfied, at this stage, that there is an arguable point and at least some of our number in the Employment Appeal Tribunal think it is arguable that there may be a breach there.   So we will give leave on that narrow point as to whether the Chairman erred in not considering and dealing with in more detail, on its merits, the argument that there was a breach of the requirements of the Education Reform Act 1988 and considering whether or not any such breach gave rise to a private law right of breach of contract on the part of Mr Reeves.   It may well be that the Industrial Tribunal Chairman was quite right in saying there was just no jurisdiction to consider that matter.   But we think it ought to at least be considered at a full Employment Appeal Tribunal.

	We must consider Mr Reeves’ further grounds.   First of all we find we do not allow Mr Reeves to argue before the full Employment Appeal Tribunal that the Industrial Tribunal erred in any way in their conclusion that the Notice of Appearance should be struck out.   The Chairman gave clear reasons for her decision not to strike it out in paragraph 16.   We note in particular that she held that she:

“...was not satisfied that Mr Reeves had suffered any disadvantage by the delay in providing the written submissions.   All documents were prepared by for the hearing today and the parties were ready for the hearing.   In these circumstances, it is my decision not to strike out the Respondents’ Notices of Appearance.”

	Here, again, we have taken carefully into account the arguments addressed to us based upon all the documents Mr Reeves has placed in front of us to the effect that it was the Respondents who were in default and they were the ones who should have been punished and penalised by having their Notices of Appearance struck out.   It was they who had failed to comply with various orders that had been made over the months and they were only saved, so to speak, summarising Mr Reeves’ argument, by the last minute change of tack to strike out his claim.   But, in our judgment, at the end of the day, it was well within the Chairman’s discretion to decide whether to uphold the application to strike out the Notice of Appearance.   And we note, in passing, that it would really have been an absurdity for the Chairman to have found that the Originating Application raised no arguable case and strike that out and yet go on to strike out the Notice of Appearance.   It would have been quite illogical and we accept that she had good reason for reaching the conclusion that she did in relation to that matter.  So we do not give leave on that ground.

	We mention two other matters shortly.  First of all, we express the view that the question as to whether there is any possible argument for breach of contract in failure to comply with the grievance procedure and whether there is an argument that can be raised in relation to that, was correctly dealt with by the Chairman in paragraph 14.   Any such argument could only arise if the Applicant were to succeed in relation to the failure to comply with the Statute to which we referred earlier.  So we consider that that cannot be put forward as a separate ground of appeal but can only be put forward as a subsidiary ground of appeal upon the basis that the ground of appeal relating to the alleged failure to comply with the Statute succeeds.

	Finally, with regard to the matter of costs, we accept, of course, that it is very much within the discretion of the Chairman to decide whether - exceptionally - costs should be ordered on the grounds of an application being frivolous or vexatious or as having no legal foundation.   Suffice it to say we think it is arguable that this particular application did not fall into that category.   Although this must always be a matter of impression we take the view that there were, or, appeared to us to have been, serious points here which were the subject of heavy litigation over many months in circumstances where the Respondents themselves were anticipating a 10 day hearing and so we consider that it is arguable that the decision to award a high figure of costs was inappropriate.   In all the circumstances, we give leave for that matter to proceed also to a full hearing, category C.   

	We will order that skeleton arguments be exchanged 28 days before the hearing of the Appeal and that a bundle of documents relative to the issues upon which we have allowed leave to appeal should be agreed between the parties, 28 days before the hearing.