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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ball v Royal Borough Of Kingston Upon Thames [2002] EWCA Civ 1709 (1 November 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1709.html Cite as: [2002] EWCA Civ 1709

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL A
D AN EXTENSION OF TIME

		Royal Courts of Justice Strand London, WC2 Friday, 1 November 2002

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal. The application is made by Mr Sutton on behalf of the applicant, his daughter Patricia Ball. The decision which the applicant wishes to appeal is that of the Employment Appeal Tribunal on 19 June 2002. At a preliminary hearing the Employment Tribunal (Mrs Recorder Cox QC presiding) dismissed the appeal from the decision of the Employment Tribunal at London South which, on 29 August 2001, had struck out the application by the applicant and made an order for £450 costs. The basis on which the application was struck out was that there was no reasonable prospect of the case succeeding. The case which Patricia Ball wishes to bring to the tribunal is set out in the form submitted on 15 November 2000, in which she names her father, Mr Arthur Sutton, as her representative.
2. The position is that Patricia Ball is employed as a full time bursar/secretary at the Maldon Parochial Church of England School in Surrey. The complaint she made is set out in detail in box 11 of the form and is stated in these terms:

"Grossly unfair treatment when compared with all other permanent full time and permanent part time employees at the same place of employment who receive:

i full time pay for hours worked including statutory meal breaks;

ii on an unrestricted annual basis including school holidays;

iii superior annual leave conditions;

iv consequential improved pension entitlement.

Compared with [her] conditions as a full time Bursar/Secretary in that [she is]

i paid similarly full time exclusive of statutory meal breaks, ie, for a 36 hour week;

ii paid term time only excluding school holidays;

iii paid restricted full time for additional attendance during school holidays;

iv pensionable service entitlement restricted to 5 day week for restricted number of weeks worked presently risen to 49.6 out of normal 52."

It is stated that further supporting evidence will be forwarded.

3. The claim was presented against the respondent, the Royal Borough of Kingston upon Thames. They denied in their grounds of resistance, dated 11 December 2000, that they were the correct respondent, because Patricia Ball is employed by the governing body of Maldon Parochial Church of England School and not by them. They construed the claim as one for equal pay and contended that there was no breach of the Equal Pay Act in that, among other things, no comparator was identified. That was the claim that was struck out.
4. Mr Sutton made it clear at this hearing that this was never intended to be a claim under the Equal Pay Act, in that there was no complaint by his daughter that she was being treated less favourably in the matter of pay than members of the opposite sex. He said that her claim, which had not been appreciated by the Employment Tribunal and the Employment Appeal Tribunal, was in fact brought under Section 45A of the Employment Rights Act 1996, which contains provisions relating to the right of a worker not to be subjected to any detriment by any act or any deliberate failure to act by his employer done on the ground that the worker has refused to comply with a requirement, which the employer imposed or proposed to impose, in contravention of the Working Time Regulations. There are other detailed provisions in that section referring to working time cases.
5. Mr Sutton has handed in this morning and has read out a four-page document, which sets out the basis on which he claims that it was wrong of the Employment Tribunal to strike out the claim and why he says there is a reasonable case presented by his daughter under Section 45A. He submits that the facts as set out in that document and in the other documents he has submitted, define what his daughter should have as her present contract of employment, amended by the respondent, under the Employment Rights Act 1996 with effect from 17 April 1996. He contended that the respondent was clearly aware that the amending contract letter to Patricia Ball dated 10 April 1996 did not conform with the terms of the 1996 Act, as correctly applied, and, if that had been done, it would not have been necessary to bring these proceedings in the Employment Tribunal. He set out in the final page the circumstances which he said justified the setting aside of the Employment Tribunal judgment and why a corrected contract of employment, with effect from 17 April 1996, should be issued to his daughter, complying with the various matters he sets out in his statement.
6. I have explained to Mr Sutton that the permission to appeal which he seeks on behalf of his daughter can only be granted if, first, there is an error of law in the decision of the Employment Tribunal and, secondly, there is a real prospect of that point succeeding on a full appeal. He sets out the detailed grounds of appeal in Section 7 of the appeal notice. I need not repeat those, since most of those matters are covered by the points made in the document he has handed in this morning and to which I have referred. I agree with Mr Sutton that it is not a correct interpretation of the claim that it is brought under the Equal Pay Act. I need not deal any more with the criticisms made of the claim on that basis. Those points were dealt with by the Employment Tribunal in their extended reasons set out in the document registered on 29 August 2001.
7. I only need to focus on Section 45A of the Employment Rights Act 1996. That was a matter which Mr Sutton drew to the attention of the Employment Appeal Tribunal at the hearing on 19 June. Mrs Recorder Cox QC, in the judgment given on behalf of the tribunal, stated in paragraph 32 that the appeal tribunal were -

" ..... unable to identify any complaint available to [Patricia Ball] under that section, or indeed under any other legislative provision, on the facts as we understand them to be."

8. I have considered all of Mr Sutton's submissions and I can well understand why he expresses, on his daughter's behalf, grievances about her employment situation. It is, however, clear that the complaints which he makes not only fall outside the Equal Pay Act, as he himself recognises, they also fall outside the provisions of the Employment Rights Act 1996.
9. I cannot see any ground on which it can be said that the matters complained of could be dealt with by an employment tribunal under the Working Time provisions of Section 45A or under any other provisions of that Act. In those circumstances and I know that Mr Sutton will be disappointed to hear this, I can see no real prospect of this appeal succeeding, because I am unable to identify any error of law in the decision of the Employment Tribunal to strike out the originating application on the grounds that it is misconceived in the sense of having no reasonable prospect of success.
10. I am also unable to hold that there is any real prospect of upsetting the exercise of the tribunal's discretion to make the order for costs in the sum of £450. They have a discretion which could only be upset, if it was plainly wrong. In my view, it is not even arguable that it was plainly wrong.
11. In those circumstances the application for permission is refused.
Order: Application refused