Ball v Royal Borough Of Kingston Upon Thames

Permission to appeal requires an arguable error of law and a real prospect that the point will succeed on a full appeal.

A complaint about employment terms does not fall within the Equal Pay Act without an allegation of less favourable treatment compared with a member of the opposite sex. Section 45A of the Employment Rights Act 1996 concerns detriment for refusing a requirement imposed or proposed in contravention of the Working Time Regulations. It does not provide a remedy for complaints about pay, holidays or pension arrangements that do not disclose such a detriment. A costs order may be disturbed only if plainly wrong.

Patricia Ball sought permission to appeal from the Employment Appeal Tribunal’s decision of 19 June 2002, which dismissed her appeal against the striking out of her employment tribunal claim.

Her complaints concerned pay during meal breaks, term-time-only employment, annual leave, additional attendance during school holidays and pensionable service. The claim was brought against the Royal Borough of Kingston upon Thames, although it disputed being the correct employer. The central issue was whether the complaints disclosed a viable claim under the Equal Pay Act or section 45A of the Employment Rights Act 1996.

1. Permission to appeal. Permission could be granted only if there was an error of law in the decision below and a real prospect that the point would succeed on a full appeal. The court found neither requirement satisfied.
2. Equal pay. The court accepted that the claim had been wrongly construed as one under the Equal Pay Act. The applicant did not allege that she received less favourable pay treatment than members of the opposite sex. The criticisms made on that basis therefore did not establish a viable equal-pay claim.
3. Working-time detriment. Section 45A of the Employment Rights Act 1996 protects a worker from detriment caused by refusing a requirement imposed, or proposed to be imposed, by the employer in contravention of the Working Time Regulations. The complaints about meal-break pay, term-time employment, holidays, additional attendance and pensionable service did not disclose a complaint capable of being pursued under that section or any other provision of the Act.
4. Strike-out. The Employment Tribunal was entitled to strike out the originating application as misconceived and having no reasonable prospect of success. The court could identify no error of law in the Employment Tribunal’s decision.
5. Costs. The tribunal’s discretion to order costs could be interfered with only if the order was plainly wrong. There was no arguable basis for upsetting the £450 costs order.

Order: application for permission to appeal refused.

• Court of Appeal (Civil Division): on 1 November 2002, Lord Justice Mummery refused permission to appeal.
• Employment Appeal Tribunal: on 19 June 2002, at a preliminary hearing, dismissed the appeal from the Employment Tribunal.
• Employment Tribunal, London South: on 29 August 2001, struck out the originating application for having no reasonable prospect of success and ordered £450 costs.