Appeal No.UKEAT/0555/04/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 August 2004
Judgment delivered on 13 September 2004

Before
HIS HONOUR JUDGE MCMULLEN QC
MR D WELCH
MR B M WARMAN

MR V M S BRUCE	APPELLANT

DIAL HOUSE CHESTER (A REGISTERED CHARITY)	RESPONDENT

Transcript of Proceedings

JUDGMENT
(paragraph 40 corrected pursuant to Rule 33, 29 March 2007)

PRELIMINARY HEARING

	APPEARANCES

For the Appellant	The Appellant in person	

SUMMARY

Disability Discrimination Act 1995 s7 small business exemption and definition of employment under s68(1). Volunteer workers for a charity are not engaged under a contract. East Sheffield CAB v Grayson and other EAT judgments to the same effect applied. Appellant’s case misconceived.
HIS HONOUR JUDGE McMULLEN QC

1	This case concerns the extended meaning of “employee” in section 7 of the Disability Discrimination Act 1995 which precludes a claim against a small business whose workforce consists of employees in the ordinary sense and volunteers who might not be so described.  Since this small business exemption will be removed on 1 October 2004, the reach of this judgment is limited.  The judgment represents the views of all three members.  We will refer to the parties as Applicant and Respondent.  

Introduction
2	It is an appeal by the Applicant in those proceedings against a decision of an Employment Tribunal on review of a previous decision.  The original decision was registered on 8 January 2004.  The Applicant represented himself and the Respondent was represented by the Chair of its management committee.  At the review, both parties merely submitted written representations.  The review decision with Extended Reasons was registered on 3 June 2004.  

3	By an Originating Application presented on 15 May 2001 the Applicant complained that he was discriminated against by the Respondent when he was not selected for the post of Case Worker - Disability Rights Project on 1 March 2001 for a reason which related to his disability.  The Respondent denied the complaint on the merits, but took the point that it had at the relevant date less than 15 employees, and was out of reach of the Act.  The Tribunal rejected the Respondent’s defence on the jurisdiction point.  

4	Following that hearing, the Respondent became aware of the judgment given prior to the hearing, of the EAT on 17 November 2003, Rimer J and members, in South East Sheffield Citizens Advice Bureau -v- Grayson [2004] IRLR 353.  It was contended that this judgment provided a clear authority for the defence being advanced and sought a review.  The Tribunal promptly granted it.  At the review the Tribunal paid attention to this authority, but was principally guided by a judgment of the EAT, Mr Recorder Langstaff QC and members, on 19 July 2002 in Bruce -v- Leeds CAB and Others EAT/1355/01.  That was Mr Bruce’s own case which the Tribunal found “surprising” that Mr Bruce had not drawn to its attention at the original hearing, for it too indicated an approach to the law relating to the small business exemption and the engagement of volunteers.  The EAT had upheld a decision of an Employment Tribunal which rejected Mr Bruce’s complaint based upon section 7. 

5	The Tribunal reversed its previous decision and dismissed the Applicant’s complaint.  He appeals against that decision.  

EAT Directions
6	Burton P gave directions sending this appeal to a preliminary hearing.  He directed that the parties should be sent copies of two previous judgments of the EAT - Prior -v- Millwall Lionesses FC EAT/341/99 in 2000 and Melhuish -v- Redbridge Citizens Advice Bureau UKEAT/1030/04 24 May 2004 Burton J presiding in each. Directions included arrangements for the preliminary hearing to be conducted by a videolink, unless the parties agreed for it to be done on the papers.  Sadly, arrangements made for the EAT to sit in another Court foundered on the technology.  The Applicant, recognising the imminence of other proceedings in September, offered a pragmatic and sensible solution, while rejecting our suggestion that the hearing continue on the papers or be refixed.  At his suggestion, we acceded to a hearing on the telephone, reserving judgment.  We are satisfied, as the Applicant appeared to be, that all of the points he wished to raise were raised and communicated to all three members.  The Respondent was not disadvantaged, since it made no written submissions for the purposes of the preliminary hearing. This is the second time I have conducted a preliminary hearing of one of Mr Bruce’s appeals on the telephone, to accommodate reasonable adjustments for his disability, and noting he is a litigant in person who is a solicitor: Bruce v Chamberlain and Addleshaw Booth EAT/0404/03.

The legislation
7	The Disability Discrimination Act 1995 provides as follows:
“7. - Exemption for Small Businesses
(1) Nothing in this Part applies in relation to an employer who has fewer than 15 employees.”
 
That exemption will be removed by the Disability Discrimination Act (Amendment) Regulations 2003/1673, Regulations 3(1) and 5, with effect from 1 October 2004.  

8	There is no definition of employer or employee, but section 68(1) provides as follows:
“employment" means ……. employment under a contract of service or of apprenticeship or a contract personally to do any work, and related expressions are to be construed accordingly”

9	By section 4 it is unlawful for an employer to discriminate against an applicant for employment who is disabled for a reason which relates to the disabled person’s disability, under section 5(1).  

The issuee
10	The issue for the Employment Tribunal was to decide whether people described as volunteers who gave their services to the charity should fall within the extended definition of employee, so as to increase the headcount of actual employees above 15.

The facts
11	The facts can be stated only tentatively, since there has been no substantive hearing.  The Applicant has been disabled since a childhood illness and is a wheelchair user.  He is a solicitor.  The Respondent is Dial House Disability Rights Centre.  It is a disability information and advice line, providing help with disability rights and other issues.  It is an independent charity affiliated to Dial UK.  On 1 March 2001, the Respondent informed the Applicant that he had been unsuccessful in his application for the post of caseworker.  By consent, the hearing of the Applicant’s Originating Application dated 15 May 2001 was stayed pending the completion of other proceedings.  At the hearing on 6 January 2004, evidence was given by Mr Atkinson for the Respondent.  The Applicant did not give evidence.  For the review, written representations were submitted.  The facts found by the Tribunal at the review were plainly based upon the evidence it heard, including the Volunteer Agreement which is described in the following passage.  
”At the material time the respondent employed thirteen people; further there were about fifty volunteers who were not paid for their work.  The volunteers worked part time as advice workers, administrative assistants and in the café and kitchen.  Although we have seen a Volunteer Agreement, it was not in existence at the material time; however we accept Mr Atkinson’s evidence that the respondent engaged volunteers on the same or similar terms at the material time.  They received expenses for travel, a free meal and free tea etc. they were obliged to work during specified hours, undertake training, and to notify the respondent if they could not attend if sick; there was a rota; they were subject to supervision; there was no obligation to provide notice of discontinuance; further there were many clauses which one commonly finds in a contract of service with reference to equal opportunities and a grievance procedure etc”

12	The Tribunal directed itself in accordance with Bruce v Leeds CAB (above) and the EAT’s treatment in that case of the judgment of the EAT in Murray v Newham CAB [2001] ICR 708. Although the application for review which was granted cited the Sheffield CAB case (above), the Tribunal apparently did not rely on it.  Its conclusions were as follows:”
“The parties agreed that the volunteers were not engaged under a contract of service.  So were they engaged under a contract to provide personal service?  The essential question being was there a contractual obligation to do any work.  There was undoubtedly a contract between the respondent and the volunteers to pay expenses that were due and to provide the nourishment set out free of charge, which a volunteer could have sued on if the respondent was in breach.  However there was no sanction in law for the volunteer refusing to work or declining to work.  No doubt there would come a time when after a succession of refusals the respondent would have removed a volunteer from its list, but that would not provide the volunteer with a right to sue for breach of contract.  In these circumstances we have concluded that there was no contractual obligation to work and thus no contract to provide any personal service.  The respondent is therefore able to rely on the section seven exemption and the tribunal does not have jurisdiction to hear the applicant’s disability complaint.”

13	The Volunteer Agreement formed part, probably the principal part, of the evidence before the Tribunal.  It is attached as an appendix to the Respondent’s volunteer policy.  It is divided into two parts.  Preceding both of them is the following:
“Volunteer Agreement
This document explains what you can expect from Dial House Chester as volunteer advisor, and what Dial House Chester expects from you.”
Following both of them, which the volunteer is required to sign as having agreed the provisions, this legend appears: 
“This arrangement is binding in honour only and there is no intention to create a legally binding relationship between Dial House Chester and its Volunteers”

14	There are ten clauses dealing with “What volunteers can expect”.  These include: to be paid expenses to travel to and from the office and expenses “created by working for Dial House”.  Free hot drinks were provided on duty; induction training was provided; supervision and support was provided, through which volunteers could “discuss their work”; policies on equal opportunity and grievances were in place.  Volunteers were taken on for a trial period.  It was also indicated that no conditions would be placed on “voluntary work” which would affect claims for benefits.  

15	In the second part - “What Dial House Chester expects from volunteers” there is the duty of confidentiality and then there is this:
“3  Availability
Providing a service depends on Volunteers being available at agreed times.  Currently core time are 09.45 am to 13:00 and 12.45 to 16:00.  Volunteers must notify their Line Manager if they are sick and their expected availability for returning to the Rota.  Reporting of sickness should be as soon as possible and prior to the rota start time.  Volunteers may wish to take time off from the rota and this can be arranged through the relevant Line Manager.
…
5  Providing/Ending the Volunteers Work
Volunteers can end their agreement with Dial House at any time by informing the relevant Line Manage in order to cover the Rota notice would be much appreciat4ed.  An exit interview will also be held to enable the Volunteer to provide feedback on their Placement and discuss reasons for leaving.
If there is any difficulty with a Volunteer’s work the relevant Line Manager will be responsible for initially discussing the concerns with the Volunteer.  The Disciplinary Procedure (details are available in the Personnel Manual) will be used where required.  Dial House reserves the right to require a Volunteer to leave if it becomes clear that the Volunteer is not suitable.
I have read the above and agree to the provisions outlined.”

16	The Employment Tribunal found that the volunteers were not employees and so the Respondent was entitled to rely on the small business exemption.

The Applicant’s case
17	The Applicant’s case against the exemption applying in these proceedings is made in written submissions for the original Tribunal, for the Tribunal on review, the grounds of appeal, a written argument on appeal, a supplementary written argument and in oral submissions made at the EAT hearing.  In summary, there are two grounds: the Tribunal had no evidence upon which to base its decision that volunteers were under no obligation to do work; and that the Tribunal misconstrued the Volunteer Agreement.  Properly construed, volunteers owed a contractual obligation to do work personally and should be included within the headcount for the purposes of section 7 of the DDA.  It was contended that the Tribunal’s decision was irrational, illogical and flies in the face of reason.  The simple proposition advanced in the Applicant’s supplementary written argument, which reflects the argument before the review hearing, is as follows:

“(1) The issue raised in this appeal revolves around the construction of section 68(1) 
“……. employment under a contract of service or of apprenticeship or a contract personally to do any work, and related expressions are to be construed accordingly”"
As will become clear, that is not in our view the issue, for the emphasis in that citation should be on “a contract personally to do any work.”

18	On behalf of the Respondent, it is contended that the issue in this case has been decided authoritatively by judgments of the EAT which apply directly and upon which the Employment Tribunal based its decision.  

The legal principles
19	We take the legal principles to be applied in this case as emerging from the following authorities.  The definition in section 68(1) of those covered by this statute brings within its protection a wider group than appears in, for example, section 230 of the Employment Rights Act 1996: Burton -v Higham t/a Ace Appointments [2003] IRLR 267.  Since the small business exemption in section 7 excludes the Applicant it must be treated restrictively, for as I said in Burton at paragraph 10:

“We approach this issue as one of strict construction.  This is an exemption from the right to claim under the Act and as such it must be clear and free of argument.  The applicant is disabled, was an employee and was unfairly dismissed prior to surgery.  She is entitled to a hearing on her complaint of unlawful discrimination unless it is clear that her right is excluded by statute.”

20	It as axiomatic that a threshold condition applying to exclude a person from protection under anti-discrimination legislation should be treated strictly since it is in the public interest that claims of discrimination be vindicated before a Tribunal at a full substantive hearing: Khan -v- Trident Safeguard Ltd [2004] EWCA Civ 624.  

21	It is common ground that the particular part of section 68(1) relevant to the decision is whether or not the volunteers were under “a contract personally to do any work” since it is not in dispute that the volunteers do work for the Respondent and do it personally.  The Volunteer Agreement is replete with references to “work”.  The central issue is whether that work is done pursuant to a contractual obligation.  

22	In a case involving the legal status of the general secretary of a women’s football club (Prior above), Burton J said as follows:
“9  The first question is whether there is, in this case, a contract at all.  In order for there to be a contract, there must in English law be consideration.  Mr Faheem has submitted that the fact that the club has gained a benefit, as it undoubtedly has from Miss Prior’s distinguished and considerable services, is enough, because that means that she, as one party to a contract, has provided a benefit, and thus consideration has moved from her.  But plainly the provision of a benefit to another party is not enough to create a contract.  It would amount to the gratuitous gift of services or goods and not a contract if it arose out of the simple provision of a benefit to another party.  There has to be mutuality to any relationship in order to create a contract.  Receipt by one of those two parties of a benefit is not sufficient.  There must be a promise in return.  “I will give you something in return for your services.”  There is, it seems to us, no such bargain in this case, no such mutuality of obligation”

23	Generally speaking, the cases fall into two categories: the first is where the person claims to be within the protected group by reason of their working relationship; the second, as here, is where it is necessary to point to others who have that relationship in order to satisfy a threshold condition.  In Murray -v- Newham CAB  (above) the applicant was in the first category.  The EAT decided that the Employment Tribunal had erred in considering as a crucial factor in its decision under section 68(1) of the DDA that the applicant was not to be paid.  The Tribunal had assessed a document which appears similar to the one in our case, indicating the commitment of a volunteer to work on various days for the CAB.  The EAT identified that the Tribunal had erred in finding that there was no obligation on either party under the Agreement.  The Tribunal had also failed to apply legal principles to the standard form agreement.  It remitted the case to the Employment Tribunal which then upheld the Applicant’s case that he should not be excluded by virtue of section 7. (The applicant was ultimately successful on the merits on appeal: [2003] ICR 643)

24	This case was the subject of further attention in 2002 in the Applicant’s own appeal, on precisely the same ground:  Bruce -v- Leeds CAB (above).  Having considered Murray [2001] ICR 708 at some length, the Recorder said this:
“11	Accordingly, we cannot see that on that basis there is a ground of appeal.  Nor does there seem to us to be any fault in the Tribunal’s distinguishing the facts of the decision in Murray v Newham.  That was a case which came to no conclusion as to whether there was or was not on its facts an obligation to work, and, if necessary, an obligation to provide work in respect of a contract to do work personally.  It left that open for further investigation by the Tribunal.  It was a case in which the essential reasoning, so far as material to the present case, was that the Tribunal were in error in focusing upon the absence of pay in return for work rather than upon the statutory definition, and in determining there was no contract rather than determining that there was a contract then proceeding to ask what nature of contract it was.  Here, although the Tribunal somewhat dubiously determined there was no contract, it did then go on to say what sort of contract it would be if there was one, and concluded that it would not be a contract to do work personally”.

25	The EAT then went on to consider the circumstances in Mr Bruce’s case against Leeds CAB.  The agreement under scrutiny, together with oral evidence, were considered by the Tribunal and the EAT and the EAT could find no fault in the finding of fact by the Tribunal as follows
“nonetheless he [Mr Bruce] was not obliged to attend personally to carry out such work at any time, as he accepted in his evidence”
The EAT thus dismissed Mr Bruce’s appeal at a preliminary hearing where the Respondent put in no submissions.  

26	In Burton -v- Ace (above) the central issue was whether persons despatched by the respondent employment agency to work for a client agency fell within section 68(1).  It was held that they were under a contract personally to do work and since it did not matter for the purposes of that section (as opposed to section 230 of the Employment Rights Act) who the other person in the contract was, the applicant, Mrs Burton, who was undoubtedly an employee in any sense, succeeded on the threshold point.  

27	In Sheffield CAB -v- Grayson (above) an employee of the CAB claimed discrimination contrary to the DDA.  She was met by the defence under section 7, for there were only eleven paid employees.  There were, of course, many volunteers who, if they fell within section 68, would raise the headcount above fifteen.  They were engaged pursuant to a “volunteer agreement”.  The Tribunal construed this agreement together with evidence presented orally.  Rimer J, giving the judgment of the EAT, held that the central question for the Employment Tribunal was whether the CAB’s volunteer workers were subject to a contract under which they were obliged to work for the Bureau (paragraph 12 of the judgment).  He went on:
“So expressed, it would appear to us surprising if the answer to that question were yes, since it is of the essence of volunteer workers that they are ordinarily under no such contract.  As volunteers, they provide their services voluntarily, without reward, with the consequence that they are entitled to withhold those services with impunity.  .  However that starting position is not necessarily also the finishing point.  In every case, including this one, if a question arises as to the legal relationship between an alleged employer and a so-called voluntary worker, it is always necessary to analyse that relationship to see exactly what it amounts to.  But if the proposition is that the volunteer worker is in fact an employee under a contract of service, or under a contract personally to do work, for the purposes of section 68 of the 1995 Act, then in our view it is necessary to be able to identify an arrangement under which, in exchange of valuable consideration, the volunteer is contractually obliged to render services to or else to work personally for the employer.”  

28	The EAT considered it was essential to focus on the Volunteer Agreement.  It noted that the CAB did not require its volunteers to sign the agreement.  It also noted that in support of the contention that there was no intention to create a legal relationship, the agreement itself
 “has been prepared to clarify the reasonable expectation of both the volunteer and the Bureau”.  
This was characterised by the EAT as:
 “directed at clarifying each side’s “reasonable expectations”.  Translated that means that it is directed at identifying what the Bureau reasonably expects of the volunteer and what the latter can reasonably expect of the Bureau.  That is not the language of contractual obligation.  In particular, someone who is indisputably engaged under a contract of service, or for services, will not usually find his and his employer’s respective contractual obligations expressed in terms of “reasonable expectation”.  They will ordinarily be expressed in terms of unqualified obligation, or at any rate the primary obligations will be so expressed, in particular those relating to the employee’s hours of work and his reward for it.”
The EAT considered various aspects of the Volunteer Agreement and came to this conclusion:
“18	We are prepared to accept that this element of the Agreement, and also the provision in it to the effect that the Bureau will indemnify advisers against negligence claims by disgruntled clients, probably do, or at least may, evidence a binding contractual relationship between the Bureau and the volunteer, namely a unilateral contract in the nature of what is sometimes referred to as an “if” contract, one which can be expressed as follows: “if you do any work for the Bureau and incur expenses in doing so, and/suffer a claim from a client you advise, the Bureau will indemnify you against your expenses and any such claim”.  But that contract is still not one which imposes on the volunteer any obligation actually to do any work for the Bureau.  
19	The critical question, in our view, is whether it is possible to extract from the Agreement, read as a whole, a contractual obligation on the part of the volunteer to provide any services at all to the Bureau.  The inclusion in the arrangements between the Bureau and the volunteer of an “if” contract of the type we have just identified does not enable this question to be answered in the affirmative, since such a contract imposes no obligation on the volunteer to do anything. ……”

29	In so doing it did not consider that the provision requiring the volunteer to undertake training, as constituting consideration (paragraph 21) and assessed the central legal question as follows: 
“21	We consider that the crucial question which was before the tribunal was not whether any benefits flowed from the Bureau to the volunteer in consideration of any work actually done by the volunteer for the Bureau, but whether the Volunteer Agreement imposed a contractual obligation upon the Bureau to provide work for the volunteer to do and upon the volunteer personally to do for the Bureau any work so provided, being an obligation such that, were the volunteer to give notice immediately terminating his relationship with the Bureau, the latter would have a remedy for breach of contract against him.  We cannot accept that the Volunteer Agreement imposed any such obligation.  Like many similar charitable organisations, similarly dependent on the services of volunteers, the Bureau provides training for its volunteers and expects of them in return a commitment to work for it, but the work expected of them is expressed to be voluntary, it is in fact unpaid and all that the Volunteer Agreement purports to do is to set out the Bureau’s expectations of its volunteers.  In our view, it is open to such a volunteer at any point, either with or without notice, to withdraw his or her services from the Bureau, in which event we consider that the Bureau would have no contractual remedy against him.  We find that it follows that the advisers and other volunteers were not employed by the Bureau within the meaning of the definition in section 68 of the 1995 Act.”

30	With that conclusion, the EAT upheld the CAB’s appeal, holding that the Employment Tribunal had no jurisdiction to hear Mrs Grayson’s complaint.  It did so without reference to any of the authorities cited above except for Burton -v- Ace.

31	In Melhuish -v- Redbridge CAB (above) the applicant came into the first of those categories we identified above i.e. a person who had to prove he himself fell within the definition of “employee”.  In this case the relevant definition was section 230 of the Employment Rights Act 1996 which, as pointed in Burton -v- Ace, and by the EAT in the Melhuish case itself, is a more restrictive definition than that under the DDA.  The EAT regarded as important the judgments in Prior (above) and Sheffield CAB (above) and while acknowledging that it was not strictly bound by those judgments
 “it would only be in exceptional cases that this Tribunal would not follow two such recent fully argued decisions, which are so close to the facts ….”

32	The issue in that case was whether there was a contract, and the material before the Employment Tribunal appears to have been the oral evidence of the parties, which included a description of the arrangements which corresponded to those in the Volunteer Agreement in Sheffield CAB and Bruce -v- Leeds CAB.  In a fully reasoned judgment in which all of the relevant authorities were cited, the EAT held that a volunteer in the CAB was not engaged on a contract.  

33	Of two further authorities relied on by the Applicant, we have received no assistance from D Whittle -v- Boss Group Ltd EAT/995/99 and we do not consider there is scope for an argument of an implied contract on the basis of the judgment of the Court of Appeal in Dacas -v- Brook Street Bureau UK Ltd [2004] IRLR 358

Conclusions
34	Applying the above principles to the issue in the present appeal, we have no hesitation in concluding that the Employment Tribunal made the correct decision on review.  On one level, it could be said that the Tribunal, having heard evidence from the Respondent and no evidence from the Applicant, made its decision on the back of that evidence plus a consideration of the volunteer agreement, whose terms applied to the volunteers engaged by Dial House.  That would be a question of fact and degree for it to decide.  On the other hand, if the sole material in front of it were the volunteer agreement, a question of law would arise as to the correct construction.  In our judgment, upon whichever of those two bases this appeal is founded, it must fail.  

35	The volunteer agreement in the instant case is in less binding terms than the CAB agreement.  For example, the volunteer is not required to enter into a “commitment”.  The contract is an “if contract”, as described by Rimer J in the Sheffield CAB case.  The findings of the Tribunal are entirely based upon its assessment of the evidence before it.  There was no irreducible minimum obligation under the arrangement between the volunteer and the Respondent.  Further, in the instant case, there was an express abnegation of an intention to create legal relations, which was not present in the CAB volunteer agreements.  In any event, as Rimer J put it, the language of commitment is not that of binding obligations under a contract.  The Applicant has put forward no basis from which there could be any legal distinction between the material in his own case Bruce v Leeds CAB, the Sheffield CAB case, and  Murray v Newham CAB as definitively interpreted in Bruce -v- Leeds CAB.  Nor is there any reason to depart from those decisions for the reasons given by Burton P in Melhuish.  We have no difficulty in dismissing this appeal at a preliminary hearing, without recourse to any submissions on behalf of the Respondent.

36	We will, however, make one or two observations.  The review hearing in this case was made necessary by the Applicant’s failure to disclose to the Employment Tribunal binding legal authority in the form of his own case against Leeds CAB.  The Respondent in its application for review was deeply critical of the Applicant for failing to do so.  The actual basis of the application was the judgment of the EAT in the Sheffield CAB case, which had been made known to the Respondent after the date of the original hearing, although the date of the judgment preceded it.  We do not know whether the Applicant knew of this authority, but he certainly knew of the judgment of the EAT in his own case against Leeds CAB.  The Applicant in our case continued to rely on Murray v Newham CAB, but again in his own case against Leeds CAB, the EAT had definitively decided the reach of that case and that it could not help him.  The Respondent, in its application for review, criticised the Applicant for failing to draw the attention of the original Employment Tribunal to the judgments in Bruce -v- Leeds CAB and Sheffield CAB.  The Employment Tribunal adopted that criticism, at least in respect of Bruce -v- Leeds CAB, see paragraph 9 of its Reasons.  Put in neutral terms, the Applicant did not take the point; nor did he, when presented by the President on written directions with two further authorities against him, Prior and Melhuish, in order to prepare himself for the preliminary hearing.  His sole response to that careful indication by the President was as follows:
“The Appeal Tribunal’s letter …. has drawn my attention to two decisions [1] Prior v Millwall - which does not appear to refer to the legal issue involved in this appeal and [2] Melhuish v Redbridge CAB.  I prefer to rely on the EAT Murray judgment.”

37	In our view, the principal issue in the appeal is whether there was a contract and from the description we have given of the Applicant’s appreciation of where the emphasis lies in this case, it is apparent that the Applicant did not take this point.  This was not simply missing the point, but amounted to avoiding the point made by binding legal authority, and expressly drawn to his attention, particularly in a case in which he himself was involved, unsuccessfully.  We regard the failure to draw the attention of the first Employment Tribunal to this binding authority, Bruce -v- Leeds CAB, while at the same time relying upon Murray, which had been subjected to interpretation by the EAT in Bruce, as both disingenuous in a litigant and unprofessional from a solicitor.  

38	Mr Bruce appears frequently in cases on his own behalf and seeks to represent others.  During the course of the instant proceedings, he has been the subject of a further judgment of Rimer J, sitting alone, on 11 February 2004 in Bruce -v- Addleshaw Booth & Co (UKEAT/0404/03).  In this case, an Employment Tribunal Regional Chairman sitting alone had struck out as misconceived a claim by the Applicant against the Respondent firm of solicitors, that he had been victimised by it, contrary to section 55 of the DDA.  The claim was struck out because the Applicant had presented no evidence that he was either an employee or, at the relevant time, an applicant for employment, of the Respondent firm.  The claim against the firm was that the victimisation consisted of the firm taking action with a view to instigating vexatious litigant proceedings against the Applicant under section 33 of the Employment Tribunals Act 1996.  This entitles the Attorney-General to seek an order from the EAT restraining a person in certain circumstances from instituting applications in the Employment Tribunals.  The basis of the defence by the firm was that the Applicant
“had issued at least 66 Employment Tribunal claims since August 1995 against various respondents and …that there were therefore reasonable grounds for its pursuit of a section 33 application.”

39	Rimer J accepted the Regional Chairman’s judgment that this claim was misconceived, for the Applicant had not even pleaded facts upon which an arguable case of unlawful discrimination could be made under sections 4(1) or 4(2).  He decided that the whole of the claim was :
“devoted to a misconceived attempt to base a claim on facts alleged to meet the ingredients of the definition of victimisation ….”

The judge decided that the argument of Mr Bruce was “a wholly impossible one which I unhesitatingly reject,” creating no arguable case.  We do not know whether the Respondent firm in that case decided to press forward with its reference to the Attorney-General, but we are ourselves aware of a very large number of cases before the Employment Tribunals, the EAT and the High Court in which the Applicant has failed in his attempts to bring himself within the scope of relevant employment legislation.  These date from as early as 1985 and include a failed attempt at judicial review: R -v- Civil Service Appeal Board Ex Parte Bruce 1988 ICR 649, 1989 ICR 171 CA and Bruce -v- DTI (EAT/766/00) 16 November 2001 unreported, Lindsay P.

40	Secondly, that judgment of Rimer J arose from a judgment of mine which is referred to in paragraph 4 above, where at a preliminary hearing I dismissed two of his appeals and sent one to a full hearing (before Rimer J): Bruce v Chamberlain and Addleshaw Booth EAT/0404/03.  I dismissed one appeal alleging insufficient reasoning by the Regional Chairman Mr Doyle. I dismissed the second appeal which was against the Chairman’s strike-out of the Applicant’s claim that Addleshaws had failed to make reasonable adjustments under Disability Discrimination Act 1995 ss5 and 6, on the ground that it was misconceived. This was because there was binding EAT authority on the same point against Mr Bruce in a case Mr Bruce had brought against another firm of solicitors: Bruce v Cavalier and Thompsons Solicitors EAT/1283/00 11 June 2002 (HH Judge Levy QC and members). I refused leave to appeal. Wall LJ did the same on the papers and then at renewed oral hearing on the telephone: see [2004] EWCA Civ 1047, holding that the complaint was misconceived and had “no basis” given the authority relied on. The hearing was on 8 July 2004 and judgment was handed down on 29 July 2004. We at our hearing were not told of Wall LJ’s judgment, which is relevant to the approach of Mr Bruce to binding EAT authority. Before our hearing he could have been in no doubt about this doctrine and its application in the present case. 

41	In the light of this experience, we have no doubt that Mr Bruce is a past master in understanding the limits of employment protection and protection against discrimination in the employment field, and in their application to persons giving their time as volunteers to charitable organisations.  His Originating Application, stayed pending other proceedings, was bound to fail.  He was at fault in failing to draw the attention of the Employment Tribunal to binding legal authority against his proposition.  He failed to recognise the force of further binding authority - Melhuish  and Prior - drawn to his attention before the EAT hearing in this case.  He did not appeal the finding against him in Bruce -v- Leeds CAB on this very point.  He considers that the legal point in these proceedings has been incorrectly decided.  With recent EAT authorities against him on this point, the Originating Application could not get off the ground if they had been available to the Employment Tribunal. The complaint to the Employment Tribunal was misconceived and Mr Bruce acted unreasonably in not showing the authority to the Employment Tribunal. Once two of them were provided to it by the Respondent, the review decision was inevitable. With now five recent EAT authorities before us, this appeal was misconceived, and Mr Bruce acted unreasonably in pursing it. With his extensive litigation experience and his qualification as a solicitor, Mr Bruce well knew this.  

42	The appeal is dismissed.