Appeal No. UKEAT/0008/07/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 March 2007 

Before
THE HONOURABLE MR JUSTICE UNDERHILL
MR J MALLENDER
MR H SINGH

DR R BENVENISTE	APPELLANT

KINGSTON UNIVERSITY	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	DR R BENVENISTE
(The Appellant in Person)	
For the Respondent	MR D O’DEMPSEY
(of Counsel)
Instructed by:
Messrs Charles Russell LLP
8-10 New Fetter Lane
London
EC4A 1RS	

SUMMARY
Sex Discrimination; Victimisation
Contract of Employment; Damages for breach of contract

Definition of “protected acts” on which Claimant could rely determined by earlier appeal – Chairman’s formulation of wrongful dismissal issues amended in part.

THE HONOURABLE MR JUSTICE UNDERHILL

1.	The Appellant is the Claimant in proceedings in the London South Employment Tribunal in which she complains of unfair dismissal, victimisation and breach of contract.   The claim was initially presented on 17 September 2004.  There have been a number of case management discussions, one of which generated an earlier appeal to this Tribunal which was dealt with over two hearings - one preliminary and one full - by HHJ Richardson.  The hearing of the Appellant’s claim is due to commence in the Employment Tribunal on 19 June 2007 with an eight-day estimate.  

2.	This is the inter-partes preliminary hearing of an appeal against various decisions of a Chairman, Mr Zuke, at a case management discussion on 10 October 2006.  However, in directing the hearing Burton J put the parties on notice that it might, in whole or in part, be treated as the hearing of the appeal itself.  The Appellant has appeared in person; the Respondent is represented by Mr O’Dempsey of Counsel.  

3.	The Notice of Appeal is divided into five headings, A-E.  The first, however, is essentially introductory in character and does not challenge any particular order made.  In it the Appellant complains that at some of the case management discussions she has not felt that she has been treated fairly, and in particular that her submissions, written and oral, have been treated with less deference than those of Counsel:  she has the impression that they have not always been read in full.   We do not propose to say anything about those allegations and confine ourselves to the determination of the issues which we have to decide on this appeal.  We would say, however, that we have found the Appellant’s submissions to be both intelligent and well-argued, and they have justified careful attention.  There are, perhaps, some litigants in person whose submissions are so rebarbative that they are difficult for the Tribunal to engage with: the Appellant certainly does not come into that category.

4.	We will deal with the remaining substantive heads of appeal in turn in the order in which they are raised in the Notice of Appeal.  

Head B – Specification of Protected acts
5.	At paragraph 6 of his order Mr Zuke defined the issues for determination at the hearing by reference to paragraph 11 of his Written Reasons.  The Appellant said that he had no call to define the issues at that stage, and that they had already been more than adequately defined in the previous case management discussions.  It seems to us that he was plainly within his rights to do so if he felt that further clarification would be helpful, and he was particularly well-placed for the task because the matter had initially been listed for the start of the substantive hearing and had only been postponed by his order as a result of the illness of a key witness.

6.	In paragraph 11(1) of his Reasons, Mr Zuke specified that the only “protected act” for the purpose of the Appellant’s complaints of victimisation was her bringing of previous Employment Tribunal proceedings against the Respondent in April 2003.  The Appellant claims that by formulating the issues in this way Mr Zuke wrongly prevented her from relying on eight other protected acts - “the post-2003 protected acts” - which she has helpfully specified at paragraph 11 of her Notice of Appeal.  That claim is supported by four distinct grounds, but Mr O’Dempsey submits that, whichever way the case is put, there is a short and conclusive answer, namely that this Tribunal has already held that it is not open to the Appellant to rely on the acts in question as protected acts for the purpose of her victimisation claim.  

7.	It is necessary to set out a little history in this regard.  In the judgment which she produced following the first case management discussion on 17 December 2004, the Chairman, Ms Hyde, identified the bringing of the April 2003 proceedings as the only protected act.  The Appellant immediately protested in correspondence that that was not correct and that there were other protected acts on which she was entitled to rely.  She referred to her pleading and particularly to paragraph 3(C) of her Details of Complaint where she said this:

“I also believe that in particular the fact that I had taken legal action against my employers in 2003 contributed to this adverse treatment.  I believe that my continued objection to the victimisation and my statement that I would assert my rights also contributed to this treatment.”

 She said that that second sentence, referring to her continued objection, brought in, albeit in general terms, acts both before and after the bringing of the April 2003 proceedings.  She had in any event been required, as part of the order made on 17 December 2004, to give additional information relating to her claim, including a requirement that she specify “the total number of occasions and the dates when you raised a grievance indicating the nature of the grievance and whether it was raised formally or informally and whether verbally or in writing.” In giving Additional Information pursuant to that order, in a pleading dated 4 February 2005, the Appellant specified 26 instances where a grievance was raised by her.  The first 20 of these pre-date the bringing of the April 2003 proceedings.  The last six post-date it and are identical to six of the eight post-2003 protected acts which she says have been wrongly excluded by Mr Zuke’s order.  The issue of which, if any, other protected acts the Appellant was entitled to rely on, over and above the bringing of the April 2003 proceedings, was considered at a case management discussion on 4 May 2005 chaired by Ms Spencer.  Ms Spencer held that to rely on any of the 26 acts specified in the Additional Information would require an amendment, and she refused leave to amend. The order made by Ms Spencer was in the following terms: 

“The Claimant’s application to amend her claim by seeking to rely on a further 26 acts as ‘protected acts’ for the purpose of her victimisation claim is refused.”  

The Appellant says that she had made it clear from an early stage that she never intended to rely on all 26 of those acts as protected acts for the purpose of her victimisation claim; but, be that as it may, the terms of the order are perfectly clear.  The Appellant appealed against this (and other aspects of Ms Spencer’s order), this being the appeal which came before HHJ Richardson.  HHJ Richardson (a) confirmed Ms Spencer’s decision that the Appellant needed leave to amend if she wished to rely on any protected act other than the bringing of the 2003 proceedings, and (b) held that Ms Spencer had not erred in law in refusing such leave.  Mr O’Dempsey submits that that constitutes a binding decision of this Tribunal on the very issue which the Appellant now seeks to raise by way of appeal from the order of Mr Zuke.  He says that all that Mr Zuke was doing in his formulation of the issues was giving effect to the original order of Ms Hyde, and refusing to depart from it in conformity with the decision of Ms Spencer as confirmed by HHJ Richardson.

8.	We are bound to say that we see no answer to that submission.  What the Appellant says is that in practice the submissions and argument before HHJ Richardson focused entirely on pre-2003 protected acts and that HHJ Richardson’s attention was simply not drawn to the post-2003 acts, as is evident from the fact that all, or in any event most, of his reasoning was directed specifically to the characteristics of the pre-2003 acts.  So far as we can see, that is right; but the reason that that was HHJ Richardson’s focus was that the Appellant herself had made it clear in her submissions (of which we have a particularly accurate record, because we have not only her Notice of Appeal but also the written notes which she made for the purpose of her oral argument) that she did not wish to rely on any of the 26 pleaded acts, save for what were, as a convenient shorthand, referred to as the 1999 and 2001 grievances.  It is not surprising in those circumstances that HHJ Richardson focused entirely on the pre-2003 period. The Appellant says that it should nevertheless have been clear to him that she also meant to preserve the right to rely on the six post-2003 protected acts, because she referred him to a letter which she had written in December 2005 to the Registrar which made clear her intention to rely on those acts.  But that is pretty oblique, and in our view HHJ Richardson was entitled to form the impression that he plainly did and to proceed on the basis that all that was live before him in relation to any of the 26 acts referred to in the Additional Information was the pre-2003 acts and, in particular, the 1999 and 2001 grievances.  But even if he was not entitled to draw that conclusion, all that that means is that he misunderstood the Appellant’s submissions before him.  That would be regrettable, but it is not something about which we can do anything.  It could only be put right, if at all, by the Court of Appeal.   It certainly does not justify us re-writing his order.  We have no doubt that the effect of that order, as framed, was that the only protected act remained that initially identified by Ms Hyde, and that the Appellant was not entitled to rely on any other act, whether pre- or post-2003.  We should make it clear for the avoidance of doubt that that would include not only the six post-2003 acts specifically pleaded in the Additional Information, but also the two further episodes to which she has referred in her Notice of Appeal.  

9.	We do not in fact believe that this conclusion will prejudice the Appellant as much as she apparently fears.  As has been already, it seems, pointed out to her by one previous Chairman (Mr Milton) at a case management discussion, and also by Mr Zuke, the fact that she cannot rely on these various matters occurring in the course of late 2003 and 2004 as protected acts does not mean that she cannot rely on them as reinforcing or supporting her case that the acts complained of on the part of the Respondent were motivated in whole or in significant part by the bringing of the April 2003 proceedings.  Although we do not have sufficient information about the facts to make any kind of finding in this regard, it would on the face of it be unlikely that the Respondent was motivated by one of the acts on which she has not been allowed to rely as a protected act and yet not to any significant extent also by the bringing of the April 2003 proceedings.  In any event, however, whether that be right or wrong, we believe that the effect of HHJ Richardson’s order is clear and means that there is no possible ground of appeal against Mr Zuke’s formulation of the issues in this regard.  

Head C – Breach of express term of contract relating to notice
10.	The Appellant was dismissed by a letter from the Respondent’s Vice-Chancellor dated 13 August 2004.  The letter terminated the contract with immediate effect but referred to her contractual entitlement to six months’ notice and said that she would accordingly be given six months’ pay in lieu of notice.  It should be noted that although the letter said that the Appellant was being dismissed for refusal to comply with a reasonable management instruction there was no express statement that that constituted gross misconduct or was otherwise a fundamental breach of contract entitling the Respondent to dismiss her summarily.  

11.	At the date that the proceedings were issued, no payment in lieu of notice pursuant to that assurance had been received by the Appellant.  Accordingly, she simply claimed “six months’ pay in lieu of notice.”  On 28 October 2004, the Respondent paid what it said was the full amount due (though this is in fact disputed - we will return to that in a moment); and in those circumstances the Grounds of Resistance which were lodged shortly afterwards did not address in any detail the question of whether the dismissal had been wrongful since on the face of it no substantive claim now depended on that issue.  It is right to say, however, that there was a general pleading that the Appellant’s summary dismissal was not a breach of contract.  However, it then emerged from the Appellant’s Additional Information that there were in fact disputes (a) as to the sum of £440.88 which had been deducted from what would otherwise have been six months’ pay in lieu of notice, because the Respondent took the view that she had taken excess holiday, and (b) that the Appellant was claiming her lost pension rights arising out of her lost six months’ of employment.  In the subsequent case management discussions it was accepted that there were issues as regards those matters which would have to be resolved; but, perhaps unfortunately, neither side was required to plead their case in any more detail.  

12.	That was the position when the matter came before the Tribunal on 12 October 2006.  As already noted, Mr Zuke was keen to define the precise scope of the issues.  In the course of the discussion, Mr O’Dempsey stated, for the first time, that while the Respondent accepted that if the Appellant’s dismissal was in breach of contract she would be entitled to damages in respect of her pension loss (we will return in a moment to how precisely that was formulated) it intended to argue that, notwithstanding that a payment in lieu of notice had been made, it was entitled summarily to dismiss the Appellant by reason of her gross misconduct - the misconduct in question being the misconduct which was already pleaded in relation to her unfair dismissal claim.  The Appellant objected that this was a wholly new case.  As to that, Mr Zuke, in his Reasons said this:  

“16.	Turning to the complaint of breach of contract, Dr Benveniste objected to the suggestion that she was dismissed for gross misconduct because those words do not appear in the letter of dismissal, or in the response to her claim.  However, the Tribunal decided that these facts do not alter the correct legal analysis of the issue.  Dr Benveniste was summarily dismissed.  That summary dismissal could only be lawful if she was in fact guilty of the gross misconduct alleged by the Respondent.  The Respondent paid her a sum of money in lieu of notice, but did not pay the employer’s pension contributions that would have been paid if she had been dismissed with a period of six months notice, to which she was entitled under her contract of employment.  If Dr Benveniste was lawfully dismissed, then the payment in lieu of notice was an ex gratia payment.  If she was wrongfully dismissed, the payment is part–payment of the damages due to her for wrongful dismissal.  Mr O’Dempsey conceded that the balance of damages due would be the employer’s pension contributions.  The Tribunal decided that the issue had been correctly formulated.”  

That reference to the formulation of the issue is to this formulation, which appears elsewhere in the Reasons:

“Damages for Breach of Contract 
(1)  Was the Respondent entitled to dismiss the Claimant summarily? i.e.: 
(a) Can the Respondent show that the Complainant actually committed the acts for which she was dismissed?  
(b) If so, did that behaviour amount to gross misconduct?  
(2)  If not, the Respondent concedes that the Claimant is entitled to damages for breach of contract in the sum of the employer’s pension contributions that would have been paid into the pension fund, during her six month notice period.”  

13.	The Appellant says that that conclusion was wrong in law.  She advances five grounds, which we address as follows.

14.	Ground (1): In summary, the Appellant’s point here is that the Respondent had never pleaded a positive case of gross misconduct or fundamental breach entitling it to dismiss her summarily.  That is correct, but the fact that the point was not properly pleaded did not mean that the Chairman was absolutely debarred from identifying it as an issue.  It is not uncommonly the case that Tribunals dispense with formal pleading requirements if points emerge in the run-up to a hearing, or even during it, which in the interests of justice they feel require to be determined.  Of course, if they are to do so, they must be satisfied that it is fair to dispense with formal pleading.  Among other things, they must be satisfied that the issues are clear and that the conditions that would have to be met if the matter had been dealt with by way of a formal application to amend were fulfilled.  It seems to us that such a decision was well within the Chairman’s discretion here.  There are two points in particular.  First, the fact that the point had not been fully pleaded is understandable - and indeed, we would say, excusable - by reason of the unusual way in which the point arose:  the Claimant herself had not pleaded anything except a claim for the amount of the pay in lieu of notice, and once that payment had been made, as it was before the Respondent’s case was pleaded, it would not have appeared there was any need to plead to the point. As we have observed, it is perhaps unfortunate that nobody spotted the point in the intervening case management discussions, but that should not be conclusive.  Secondly, and crucially, the formal recognition of this issue did not involve the introduction into the case of any new areas of factual enquiry.  Mr O’Dempsey confirmed to us, and it will no doubt have been clear to the Chairman from his knowledge of the papers, that the matters relied on as gross misconduct justifying summary dismissal  were precisely the matters which were already pleaded in connection with the Appellant’s unfair dismissal claim.  

15.	Ground (2): The Appellant’s essential points here are (a) that it is simply not the case that she was dismissed for gross misconduct and that any such case contradicted “what has been established by documented evidence and by witnesses”, and (b) further, that the allegation had simply been made up by Mr O’Dempsey without any instructions.  As to (a), the question as a matter of law is not what subjectively were the reasons for the dismissal, but whether grounds for summary dismissal in fact existed: this has been the law ever since the decision in Boston Deep Sea Fishing and Ice Co v Ansell (1888) 39 Ch. D 339.  It is no doubt the case that the Appellant disputes the existence of any grounds which would justify her summary dismissal, but that is a matter for determination at the full hearing.  It was not for the Tribunal, and it is not for us, on what is in practice an application for permission to amend, to enter into disputed areas of fact.  As to (b), the Appellant misunderstands the effect of what Mr O’Dempsey was saying.  He was not, of course, simply asserting facts without instructions or without any basis for doing so.  The facts were already pleaded.  What he was doing was making clear that they would be deployed in a way which had not previously been made explicit.  

16.	Ground (3) depends on the points already made in grounds (1) and (2) and we say no more about it.

17.	Ground (4) complains that it was the Chairman who came up with the observation that the payment of money in lieu of notice by the Respondent would be “ex gratia” if they had in fact been entitled to dismiss her.  That may well be so: we have no reason to doubt the Appellant’s recollection that that formulation first came from him.  But if so he was merely spelling out the implications of the submission being made by Mr O’Dempsey.  

18.	Ground (5) returns to the Appellant’s point that the allegation that she was dismissed –or, perhaps more accurately, that she was liable to be dismissed - for gross misconduct is unfounded.  If the Respondent fails to establish at the Tribunal that she was guilty of such misconduct, then she will indeed win at the Tribunal; but that is not a matter on which the Chairman was obliged to form any view.

Head D – Damages for breach of contract
19.	We have already quoted (see paragraph 12 above) the passage from the Chairman’s Reasons in which he recorded Mr O’Dempsey’s “concession” that if the Appellant had been wrongfully dismissed the balance of damages due would be “the employer’s pension contributions” and, as has been seen, that formulation was adopted in his formulation of the issues.  

20.	The Appellant says that that formulation was wrong and was unfairly restrictive.  She makes the point that simple payment of the amount of the employer’s pension contributions may not be the appropriate measure of the pension loss which she will have suffered if she had been wrongfully dismissed.  We agree. It is well recognised that, in the case of a final salary scheme, the repayment of contributions will not be an accurate measure of pension loss.  That being so, we do not think it could be right for the Chairman to formulate the issues in the terms that he did unless the Appellant had unequivocally made it clear that she elected to have her damages in that form.  Mr O’Dempsey failed to persuade us that she had made any such unequivocal statement.  It seems to us, subject to any contrary submissions, that the correct formulation of the relevant part (which is part (2) of the issues under the heading “Damages for Breach of Contract”), is as follows: 

“If not, what damages is the Claimant entitled to for the diminution of her pension rights as a result of her summary dismissal?”  

21.	It is notorious that calculation of pension loss can be a complex matter.  It may be that in practice any loss that was eventually found could be compensated by the Respondent undertaking to make whatever payment was necessary to the pension fund trustees to buy the Appellant the equivalent of six months’ further service.  But we cannot be sure that this course will be possible.  If it is not, then in principle some complex actuarial calculations may be required.  The Appellant is herself a mathematician and has prepared some calculations: it remains to be seen whether those may be capable of agreement.  However, on the assumption that agreement is not possible, it seems to us that it would be disproportionate to expect the parties to prepare cases on this part of the case in advance of a determination of the issues of liability.  We understand that the hearing at present fixed is intended to cover issues of remedy as well as of compensation.  It remains to be seen whether that turns out to be realistic; but in any event we would direct that the issue of the calculation of any pension loss be deferred to a further hearing unless the parties are able to agree it.  

Head E – Objections to the write-up relating to a decision on unauthorised deduction from wages

22.	Fortunately, this is a comparatively straightforward point - or at any rate one which we have been able to deal with quite straightforwardly.  In formulating the issue in relation to the £440.88 holiday pay which had been deducted, Mr Zuke used the language of “unauthorised deduction”, which is plainly a reference to Part II of the Employment Rights Act 1996, and it was evidently his intention (and, we are sure, that of the parties at the case management discussion) that that should be used as the vehicle for determining that issue.  

23.	The Appellant was, however, concerned at how to reconcile that order with an earlier order of Ms Spencer which dismissed an application on her part to amend her claim to add claims under, among other things, s13 of the 1996 Act.    No-one has been able satisfactorily to elucidate for us exactly what Ms Spencer intended to exclude by that order.  It is, however, clear from her substantive Reasons and from the Judgment of HHJ Richardson that both of them expected and intended the issue as to holiday pay to be determined at the eventual hearing, and there is no question of the substantive claim in this regard being struck out.  In those circumstances Mr O’Dempsey has sensibly agreed on behalf of the Respondent not only that the issue falls for determination but also that Part II of the 1996 Act is the appropriate vehicle for its determination.  That being so, there can be no objection to the way in which the issues have been formulated by Mr Zuke.  The question of how that can be reconciled with Ms Spencer’s order becomes wholly academic and does not deserve further consideration.  Even if the effect of that order was to dismiss any claim under the 1996 Act, there is no reason why the Appellant should not be allowed to amend her claim now, with the consent of the Respondent, to reintroduce such a claim.    

Conclusion
24.	The result is that we dismiss the appeal as regards Heads B and C.  We allow it as regards Head D, and make the amendment to the Chairman’s formulation of the issues which we have identified at paragraph 20.  We also make the consequential direction as to how the pension loss issue should be dealt with in the Tribunal which we have identified at paragraph 21.  As regards Head E no order is required.