Appeal No. EAT/919/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 9 March 1994

	Before

	HIS HONOUR JUDGE B HARGROVE OBE QC

	MISS A P VALE

	MR G H WRIGHT MBE

DJM INTERNATIONAL LTD	APPELLANTS

MRS M J NICHOLAS	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR ANTHONY SENDALL
(OF COUNSEL)
Messrs Halliwell Landau
St James Court
Brown Street
Manchester M2 2JF

For the Respondent	MS KATE BEAVAN
(LAY ADVOCATE)
33 Greenfield Crescent
Wallingford
Oxon
OX10 0PA

	JUDGE HARGROVE OBE QC:  Mrs Nicholas was originally employed by D J Mouldings and she had been there for some years.  She left full time employment (and I am using neutral terms here for a good reason) on 10 July 1992.  A week later she then returned to part-time work and on 27 September 1992 that firm was taken over by the present Appellants in this case and on 25 February 1993 her part-time employment was terminated.  
	This appeal is in respect of the question whether she should be allowed to bring a claim under the Sex Discrimination Act.  Subject to one point, and is quite clear, that as the Tribunal found she was considerably out of time in submitting her case.  The manner in which the Tribunal exercises discretion and decided that the case should be heard was in this way.  At paragraph 7 - 10 the Tribunal said:

		"As to the matter of sexual discrimination Mrs Nicholas would seek to establish that there was a discriminatory act against her on the part of her management when her wish to work full-time after the age of 60 and not retire was rejected.  This alleged discriminatory act came about when Mr Clapham, she says, told her that she had to retire because it was "the law", or when he says, that she had to retire because he had been "legally advised".

		She said that she thought that he was doing her a favour; that she was a fool and that she was not really happy with the situation.  Mr Clapham was unable to inform the applicant that a takeover was imminent which was, in part, one of the reasons for his partner insisting that everyone retire at 60.

		We find that in the circumstances the applicant did not have the opportunity to understand or consider properly all her rights and options in the light of all the facts and the impression that she may inadvertently have obtained from Mr Clapham that his view of the law prevailed.

		In those circumstances we find it just and equitable to allow the claim for sexual discrimination to be heard..."

 	The objection taken is first upon the basis that one matter was taken into account which has no relevance, namely the fact that the takeover was to take place was not revealed to Mrs Nicholas.  It does not seem to us that that was a matter of great importance to the Tribunal but it seems to us also that it was part of a background being considered, one of the circumstances, which the Tribunal was entitled to look at.  

	It is also said that in this case Mrs Nicholas was aware of her rights at an earlier stage, that she indeed knew of the case of Marshall, that she may well have had a copy of the case.  Nonetheless, having realised what her rights were, it is said she then sat upon them, she has no excuse, and for that reason the Tribunal ought not to have exercised its discretion in the manner in which it did.  

	Our attention has been directed to T J Hutchison v Westward Television Ltd [1977] IRLR 69 and contains at page 71 a passage which has been used time and again in these types of cases.  It says this:

		"Really he must show, if he is to succeed upon appeal, that the Industrial Tribunal demonstrably took a wrong approach to the matter, or that it took into account facts which it ought not have done, or that if failed to take into account facts which it should have done, or, as a last resort which is always open upon an appeal, that the decision was so unreasonable in all the circumstances that no reasonably instructed Tribunal could have reached it."

If one applies that test to the paragraph that I have read out it is quite plain that there is ample ground for the Tribunal to exercise its discretion in the way it did.  The fact that it is not the way in which one or more members of this Tribunal might have exercised discretion placed in the same situation, is nothing to the point.

	In our view this is not one of those cases where this Tribunal should interfere with the correct exercise of discretion of an inferior Tribunal.  Accordingly this appeal is dismissed.