Cusworth v British Gas Ltd.

A tribunal may order an unsuccessful claimant to pay costs where claims are misconceived. The Court of Appeal will interfere only for an error of legal principle or where the order is plainly wrong. A compromised claim cannot be re-litigated because of the compromise and estoppel. An equal pay claim remains subject to the limitation period under the Equal Pay Act 1970, which is not incompatible with the Community law principle of equivalence. Permission to appeal should be refused where the proposed appeal has no real prospect of success.

The claimant appealed from the Employment Appeal Tribunal’s dismissal of his appeal against an Employment Tribunal decision dismissing proceedings for want of jurisdiction and ordering him to pay £2,000 costs. The proceedings included claims for unlawful deduction of wages, breach of contract, sex discrimination and equal pay.

The Employment Tribunal held that the first group of claims had been compromised. It held that the equal pay claim was out of time and that the statutory grievance procedure had not been invoked. The Employment Appeal Tribunal upheld those conclusions and identified issue estoppel as a further bar. The central question was whether the proposed appeal had a real prospect of success.

1. Application refused. The proposed appeal had no real prospect of success on any arguable question of law.
2. Claims for unlawful deduction of wages, breach of contract and sex discrimination could not be pursued because they were covered by a compromise agreement. The compromise and doctrines of estoppel prevented the claimant from reopening or re-litigating those matters.
3. The equal pay claim was not covered by the compromise agreement, but was outside the limitation period under the Equal Pay Act 1970. The tribunals were required to apply the Act unless its provisions were incompatible with Community law. Following Preston No. 2 [2001] Industrial Cases Reports, the limitation provisions were not incompatible with the Community law principle of equivalence.
4. The Employment Tribunal also had no jurisdiction because the claimant had failed to invoke the statutory grievance procedure. The Employment Appeal Tribunal’s conclusion that issue estoppel would independently prevent the claim proceeding meant that remittal would serve no purpose.
5. An employment tribunal has power to order an unsuccessful claimant to pay costs where claims are misconceived. The Court of Appeal would interfere with that discretion only for an error of legal principle or where the order, including its amount, was plainly wrong. The £2,000 order concerned the compromised claims and disclosed no such error.

The applications for permission to appeal and for a stay of execution were refused.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused; the application for a stay of execution was also refused.
• Employment Appeal Tribunal: appeal dismissed on 21 February 2007. The tribunal upheld the limitation, grievance procedure, issue estoppel and costs conclusions.
• Employment Tribunal: proceedings notified on 13 July 2006 dismissed for want of jurisdiction, with an order for £2,000 costs against the claimant.