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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Riniker v University College London [2003] EWCA Civ 1991 (07 November 2003) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2003/1991.html Cite as: [2003] EWCA Civ 1991 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE MCMULLEN QC)
Strand London, WC2A 2LL |
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B e f o r e :
____________________
URSULA RINIKER | Claimant/Applicant | |
-v- | ||
UNIVERSITY COLLEGE LONDON | Defendant/Respondent |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
The Respondent did not appear and was not represented.
____________________
Crown Copyright ©
"Must be the subject of a fresh Originating Application as it appears to arise out of a communication which only came into existence after the Originating Application herein was received."
That was a reference to her first application, 45417. In the result, various other applications were issued thereafter. For example, in November 1993, complaint 62447 for failure to pay wages was eventually dismissed on appeal on 23 September 1999; on 1 February 1994, complaint 8814 alleging victimisation was dismissed on 27 July 1995; complaint 8812/94, issued on 3 February 1994, forms the subject of this application. That was a claim relating to the unequal terms of employment, including discriminatory access to the pension scheme under the Equal Pay Act. There was a claim in April 1994 under number 22479 alleging sex discrimination. In some of these complaints amendments had been allowed to allege sex discrimination; for example in complaint 8812 and 61613 but not in the first complaint, 45417.
"The current status of those applications is as follows:
45417/92 unfair dismissal complaint conceded by Respondent -- awaiting Remedy Hearing.
55840/92 unfair dismissal complaint to be determined.
61613/92 unfair dismissal complaint to be determined."
The Chairman gave directions that, in case 8812, the claim under the Equal Pay Act, which had been adjourned to await the decision of the House of Lords in Preston and Ors v Wolverhampton Health Care NHS Trust and Ors [2001] IRLR 237. That matter was listed to take place on 4 February to determine whether the tribunal had jurisdiction to hear the complaint, and directions were given for skeleton arguments and so forth.
"It has been settled by decisions binding on this court that the question for the Court of Appeal is whether there is an error of law in the decision of, or in the proceedings before, the employment tribunal."
"An appeal on any question of law lies from any decision or order of the Appeal Tribunal to the relevant appeal court with leave of the Appeal Tribunal or the relevant appeal court."
"In the case of any action for which a period of limitation is prescribed by this Act".
A period of limitation was not prescribed by the 1980 Limitation Act, but was contained within section 2(4) of the Equal Pay Act.
"Unequal terms of employment, in particular discriminatory denial of access to the occupational pension scheme in breach of the Equal Pay Act 1970 (as amended) and Article 119 of the Treaty of Rome."
It follows, in my judgment, that the period of limitation is entirely controlled by the 1970 Act. The Limitation Act 1980 as has nothing to do with this case whatever.
The Second Appeal
"Moreover, originating application 8812/94 is not a claim of Sex Discrimination but, first and foremost, a pension rights claim."
She describes that the tribunal's decision letter of 22 February 2002:
"Perversely suggests that originating application 8812/94 is a claim of Sex Discrimination."
"The detailed reasons why originating application 8812/94 is NOT TO BE STRUCK OUT are contained, in writing, in my three-page submissions of 24.2.02."
Nothing in the letter of 24 February gives any reason for not striking it out, as was fore-warned in the decision of 22 February 2002, because claims under the Equal Pay Act and Sex Discrimination Act are mutually exclusive. The tribunal indicated that it proposed to follow Oliver v JP Malnick & Co (No 2) [1984] ICR 458. That decision has stood unchallenged for nearly 20 years and I see no reason now to think that it was wrong. The claims under the Equal Pay Act and Sex Discrimination Act are mutually exclusive. In my view the tribunal were correct.
The Third Appeal
"The two former applications could not possibly be understood or determined in isolation and any attempt to list them separately is unlawful."
It was not unlawful. It was an effective case management decision, and I think it was wholly appropriate to deal with the preliminary issues which would establish the employer's liability.
"As I have said countless times in the past, after 10 years of delay, I shall not attend any preliminary or other partial hearings on my case."
If she chooses not to attend, she cannot complain she has not had a fair trial.
The Fourth Appeal
"The Applicant's Originating Application made clear that the offer of employment in the German Department was to be viewed independently from her part-time job with the Language Centre. Therefore any continuity of service attaching to the Language Centre position did not attach to the offer of employment in the German Department. That offer of employment should be viewed quite independently. On this basis, accepting the Applicant's version of events (which the Tribunal did not) the earliest date on which the contract came into existence was 18 May 1992. The latest date on which the contract ended, even on the Applicant's case, was 30 September 1992. The duration of employment fell far short of the two years required in 1992 to found an unfair dismissal claim. It was regrettable that this issue had not been focussed upon earlier."
"The Tribunal were not satisfied, having heard the evidence, that the Applicant ever formed a concluded contract with the Respondent. They found that Bill Larrett did not have the authority or financial backing to offer such a contract on 18 May 1992 and that the correspondence in the period between May and August 1992, both from the Applicant and the REspondent, was more consistent with general discussions about the possibility of a job than a concluded contract. The Respondent made a formal offer of employment on 6 August 1992 which was not then accepted sufficiently unequivocally by the Applicant to constitute a contract."
I can see no error in law in that conclusion.
"The Tribunal, having considered the documents and the evidence of the witnesses, concluded that the Applicant had failed to establish less favourable treatment for the purposes of the Sex Discrimination Act 1975 or sex discrimination for the purposes of the Equal Treatment Directive. The Applicant was treated in precisely the same fashion as a significant number of other Language Centre tutors whose contracts were not renewed at the end of the first year of operation of the Centre. Once teaching obligations ceased, these staff were required to return their key and required consent to enter the Language Centre. However the requirement not to enter the Language Centre was imposed only in express written form on the Applicant. It was imposed in this fashion because of the breakdown in her relations with the management of the Language Centre and subsequent visits by her to the Centre which gave cause for anxiety that she would disrupt the operation of the Centre if she was allowed to continue to visit. The Applicant made no mention of sex discrimination at the time of her exclusion from the Centre. It was only nearly two years later that she sought to add such a claim. There was no evidence to suggest any connection between the fact that the Applicant was a woman and the requirement not to enter the Centre imposed on her."
This was a finding of fact. There is no error of law and the finding must stand. The fact that Miss Riniker did not attend to advance her case is not offensive to Article 6 for the reasons I have already given.