Riniker v University College London

An appeal from an Employment Tribunal through the Employment Appeal Tribunal remains confined to questions of law. The Court of Appeal may analyse alleged errors of law in the Tribunal’s decision or proceedings, but does not re-try the case. Separate complaints remain separate even when consolidated. Case-management directions, preliminary hearings and determination on written submissions may comply with Article 6 where the litigant has a fair opportunity to present the case. Leave to appeal is not automatic because a human-rights issue is raised. Limitation under section 2(4) of Equal Pay Act 1970 governs an equal-pay claim; section 32(1) of Limitation Act 1980 does not displace it. Claims under the Equal Pay Act and Sex Discrimination Act 1975 are mutually exclusive.

The applicant had taught German for University College London under arrangements involving the Language Centre, chemistry students and the German department. Over several years she brought separate Employment Tribunal complaints concerning unfair dismissal, equal pay, pension rights, victimisation and sex discrimination.

The Tribunal made a series of decisions concerning limitation, jurisdiction, strike-out, case management, continuity of employment, contract formation and alleged sex discrimination. Four appeals were heard together by the Employment Appeal Tribunal and dismissed by His Honour Judge McMullen QC and two lay members on 20 December 2002. The applicant sought permission from the Court of Appeal to appeal further. The central issues were whether the Tribunal had erred in law, whether the separate claims could be treated as one, and whether the procedural decisions were compatible with Article 6.

Outcome. The Court of Appeal dismissed the application for permission to appeal.

1. The court confined its consideration to the Employment Tribunal stage. Appeals from the Tribunal to the Employment Appeal Tribunal, and onward to the Court of Appeal, lie only on questions of law. The Court of Appeal was as well placed as the Employment Appeal Tribunal to analyse alleged errors of law. This approach was consistent with Vento v Chief Constable of West Yorkshire Police (No 2) [2003] 1 IRLR 102.
2. There was no illegality in using preliminary hearings to identify arguable points of law or determine identifiable issues. The relevant Employment Appeal Tribunal practice permitted that approach, and the later wording requiring a reasonable prospect of success made no material difference. A human-rights issue did not create an automatic entitlement to permission under section 37(1) of the ETA 1996.
3. The applicant’s complaints were separate, free-standing claims. Consolidation meant that they could be heard together; it did not merge them into one complaint. Section 32(1) of the Limitation Act 1980 therefore had no application to the equal-pay claim, since its limitation period was prescribed by section 2(4) of the Equal Pay Act 1970. Following Preston and Ors v Wolverhampton Health Care NHS Trust and Ors [2001] IRLR 237, section 2(4) was valid and applied whether the alleged discrimination was characterised as direct or indirect. The equal-pay claim was out of time.
4. The Tribunal was entitled to strike out the sex-discrimination claim in the separate application. Equal Pay Act and Sex Discrimination Act claims were mutually exclusive. The applicant had received notice of the proposed strike-out and had supplied written submissions. Article 6 was not breached.
5. The decision to list liability issues separately from remedy was a lawful and appropriate case-management decision within the generous ambit of reasonable disagreement. The applicant’s voluntary absence did not make the hearings unfair where the Tribunal considered her written case.
6. In the fourth appeal, the proposed German-department employment had properly been treated independently from the Language Centre employment. On the Tribunal’s findings, the period of employment fell far short of the two years then required for an unfair-dismissal claim, so the contract issue need not have been decided. In any event, the Tribunal’s conclusion that no concluded contract had been formed disclosed no error of law.
7. The finding that the applicant had not established less favourable treatment or a connection between the treatment and her sex was a finding of fact. The Tribunal was entitled to assess the unchallenged hearsay evidence and its conclusion stood. All applications were dismissed.

• Court of Appeal (Civil Division): On 7 November 2003, the application for permission to appeal was dismissed.
• Employment Appeal Tribunal: Four appeals were heard together and dismissed by His Honour Judge McMullen QC and two lay members on 20 December 2002.
• Employment Tribunals: A series of decisions addressed the applicant’s separate complaints, including limitation, strike-out, case management, continuity of employment, contract formation and sex discrimination.