Appeal No.	 EAT/125/00, EAT/126/00 & 
EAT/844/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 November 2000
	Judgment delivered 
	On 31 January 2001

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MRS R CHAPMAN
MR D J JENKINS MBE

EAT/125/00
MRS JOAN R NEWNHAM	APPELLANT
TRANSCO PLC	RESPONDENTS

EAT/126/00
MRS E K SIMMS & OTHERS	APPELLANTS
TRANSCO PLC	RESPONDENTS

EAT/844/00
MRS IRIS PARKER	APPELLANT
TRANSCO PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For Mrs Joan R Newnham (EAT/125/00)

For Mrs E K Simms and others (EAT/126/00) and
Mrs Iris Parker (EAT/844/00)	MR M DUGGAN
(of Counsel)
Pro Bono

MR P O’BRIEN
(Representative)	
For Transco plc	MR S JONES
(of Counsel)
Transco plc
Norgas House
PO Box 1GB
Killingworth
Newcastle-upon-Tyne
NE99 1GB	

	MR JUSTICE LINDSAY (PRESIDENT):		

INTRODUCTION

1.	In 1996 and 1997 some 32 women who had, many years earlier, worked for British Gas plc, lodged IT1s complaining that they had suffered unlawful sex discrimination at its hands, discrimination unlawful under both the Sex Discrimination Act 1975 and the Directive 76/207EC (“the Equal Treatment Directive”).    The complaints were that in the period between 1979 and 1987 they had been required to retire at age 60 at a time when male employees were allowed to remain at work until age 65.   British Gas plc became BG plc and is now Transco plc.

2.	After a hearing spread over 17 days from November 1998 until October 1999 at the Employment Tribunal at Birmingham under the Chairmanship of Mr D.W. Crump, the Tribunal ruled that it did not have jurisdiction to deal with the claims.   It held the claims to be out of time under section 76 (1) (a) of the Sex Discrimination Act 1975 (as was incontestable) and that it was, in all the circumstances of the respective cases, not just and equitable to consider the cases proper to be presented under the provisions of section 76 (5).   Of the 32 unsuccessful applicants, some 18 appeal to us as to that view of the justice and equity of what is, in effect, a provision for an extension of time.   

3.	Before us all but one of the Appellants appeared by Mr O’Brien, the Consultant who had appeared for two of the Applicants at the Employment Tribunal.   One Appellant, Mrs Newnham, was represented by Mr Duggan by way of the Bar’s Pro Bono Unit.   The Respondent, now Transco plc, appeared by Mr Sean Jones.   

THE LEGISLATION

4.	As for the Council Directive 76/207, which was dated the 9th February 1976, Article 1 describes “The Principle of Equal Treatment” which, as Article 2 (1) provides:-

“...... shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly ......”

Article 3 (2) requires that Member States should take measures necessary to ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment should be abolished and that any such contrary provisions in contracts of employment should be made void or amended.   Article 5 (2) (b) is to a like effect.   Article 6 obliges Member States to introduce into the national legal system such measures as are necessary to enable all persons who consider themselves wronged by failure to apply the principle of equal treatment to them to pursue their claims by judicial process.   Article 8 requires Member States to take care that provisions adopted pursuant to the Directive should be brought to the attention of employees by all appropriate measures. 

5.	As for our domestic legislation, as it has changed substantially in material ways over the years it needs to be explained in greater detail.   Section 1 (1) (a) of the Sex Discrimination Act 1975, introduced at a time when all of the Appellants were still at work, provides:-

“(1)	A person discriminates against a woman .... if -
(a)	on the ground of her sex he treated her less favourably than he treats or would treat a man ...”

Section 6 (2) provides:-

“(2)	It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her - 
(a)	......
(b)	by dismissing her, or subjecting her to any detriment”

However, as the statute was enacted it contained an exception - section 6 (4) - which disapplied section 6 (2) in relation to retirement.   The position thus was, looking simply  at our domestic legislation, that it was then not an actionable form of discrimination for an employer to provide a different retirement age for his men and women employees.   That was changed with effect from the 7th November 1987 by the Sex Discrimination Act 1986 which amended (inter alia) sections 6 and 82 of the 1975 Act.   Section 6 (4) was amended to read:-

“(4)	[Section 6 (2) does] not apply to provisions in relation to ... retirement except in so far as, in [its] application to provision in relation to retirement, [it] render[s] it unlawful for a person to discriminate against a woman
(a)	......
(b)	......
(c)	by dismissing her or subjecting her to any detriment which results in her dismissal ...”

That form of amendment (“except in so far as”) makes sense as an amendment worth making only if section 6 (2) could, in an appropriate case, render a termination of employment upon the application of a retirement age an unlawful form of discrimination and to make that plainer (because, doubtless, persons might not ordinarily think of a retirement in such a case as a dismissal), section 82 of the 1975 Act was also amended to insert a sub-section (1A) giving a definition of dismissal where none had been before.   So far as material section 82 (1A) provided:-

“(1A)	References in this Act to the dismissal of a person from employment .... include references -
(a)	to the termination of that person’s employment .... by the expiration of any period (including a period expiring by reference to an event or circumstance) ....”

Accordingly, at least from the 7th November 1987, a termination of employment on or by reference to (inter alia) a woman employee’s 60th birthday could be properly be regarded as a dismissal.   In turn, and in relation to the required retirement of women at 60 on or after the 7th November 1987 in cases where, at the time, men could stay on until 65, there would be unlawful discrimination within section 6 (2) (b), at any rate if it were shown that that requirement amounted to less favourable treatment within section 1 (1) (a).

6.	Women, under such a policy, were denied a choice (whatever its financial or other consequences) which the men had.   The men could, if they chose, terminate their employment with their current employer at age 60 (if only by giving notice) or, if they chose (and if employment were not terminated on some other account) they could work on for that employer beyond age 60 and to age 65.   The women had willy-nilly to retire at age 60;  choose as they might, they could not continue to work for their erstwhile employer after age 60.   It might be added that in many cases the prospect of a woman getting employment after 60 with another employer would probably have been exceedingly slim.

7.	For women to be denied an option can represent their being treated less favourably than men without there invariably needing to be an enquiry into how the option would have been exercised had it been open to women - Gill & Coote -v- El Vinos Co. Ltd. [1983] IRLR 206 C.A. where the Court of Appeal dealt with the well-known bar which had a rule which, in effect, meant that women could not buy or consume drinks in the front area of the bar whereas men could.   Griffiths L.J. said of any woman at El Vinos at para 14:-

“There is no doubt whatever that she is refused facilities that are accorded to men, and the only question that remains is:  is she treated less favourably than men?   I think that permits of only one answer:  Of course she is.   She is not being allowed to drink where she may want to drink, namely standing up among the many people gathered in front of the bar.”

It sufficed, it will be noticed, that she “may” want to drink.   Sir Roger Ormrod at para 18 said:-

“..... I find it impossible to say, where one sex has an option and the other has not, that there is not a differentiation between them and, prima facie, a differentiation which results in less favourable treatment.”

Eveleigh L.J. in para 9 said that because the front area of the bar had a “somewhat unique atmosphere which is clearly greatly appreciated and is in great demand by men”:-

“... I cannot, therefore, assume that there is no true demand for it by women.”

In the case before us, one sex has had option which the other has not;  it is a tolerably plain case where one does not need an enquiry to establish that it was an option which women “may” have wished to exercise by staying on at work after 60 if only the choice had been open to them and, as many men chose to work on after 60, it could not be assumed that there was no true demand for it amongst women.   We thus see there to have been less favourable treatment within section 1 (1) (a). 

8.	Whilst we have mentioned the content of our domestic legislation in particular respects as at dates down to the 7th November 1987, we remember that every Appellant had retired before that date.   We do not need for immediate purposes to look at further changes after 7th November 1987.

9.	At the time each of the Appellants retired there were, as we have seen, clear domestic statutory provisions effectively making retirement provisions invulnerable to attack on the grounds of their being sexually discriminatory.   Whether any Appellant could have been expected by then or at some later date to have seen that she could take advantage instead of the Equal Treatment Directive is a question we shall to return to in more detail later.   Whether a person is aware or can reasonably be taken to have become aware that he or she can issue proceedings is, as we see it, one of the factors that may properly be taken into account when a Tribunal is considering delay in the launch of proceedings.

10.	As to that, the time within which complaints of sex discrimination might be presented is prescribed by section 76 of the 1975 Act which says:-

“1.	An Employment Tribunal shall not consider a complaint .... unless it is presented to the Tribunal before the end of -
(a)	the period of three months beginning when the act  complained of was done;”

On that basis complaints in 1996 and 1997 as to involuntary and discriminatory retirements at age 60 in the period between 1979 and 1987 would plainly be barred.   However, section 76 (5) provides, as to out of time complaints generally under the Act, that:-

“5.	A ... Tribunal may nevertheless consider any such complaint ... which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”

THE DISCRETION

11.	One could hardly frame a wider and less fettered discretion than one relating to justice and equity in all the circumstances of the case.   Moreover, given that the Employment Appeal Tribunal can only deal with error of law, where the appeal concerns, as this one does, the exercise of a discretion by the Employment Tribunal, the Appellant needs to show that the Tribunal took into account some matter that it should not have done, failed to take into account something which it should have done, or otherwise erred in law such that no Tribunal properly instructing itself could have come to the conclusion to which it came.   It is a heavy burden for an Appellant - see T.J. Hutchison -v- Westward Television Ltd [1977] IRLR 70 where Phillips J, giving the judgment of the EAT, made the point that he would deprecate the very simple wide words of section 76 (5) “Becoming encrusted by the barnacles of authority”.   We respectfully agree but, fortunately, the topics with which we have been chiefly concerned in relation to the Tribunal’s exercise of the discretion, namely whether at the time of the Tribunal hearing a fair trial of the issues was still possible, when it was that the Appellants severally first knew or could fairly be taken to have known of their ability to launch effective proceedings, how speedily or otherwise they respectively acted thereafter and why they delayed, if any did, are all matters so obviously proper to be taken into account by the Tribunal that there has been little argument that they should not have been.

12.	As for those factors, we shall first look to when it was or could have been seen that effective proceedings for sex discrimination in relation to retirement, proceedings with at least an arguable prospect of success, could have been launched by the Appellants.

WHEN COULD VIABLE PROCEEDINGS HAVE BEEN LAUNCHED?

13.	So far as concerns our domestic legislation, as we have seen, no proceedings thereunder could have been launched until the 7th November 1987 because until then there was a statutory provision which excepted retirement from the ambit of the Sex Discrimination Act and because all the Applicants had retired before that date.

14.	Possible reliance, instead, on the Directive is a matter of much greater complication.   There is a doctrine, broadly speaking, that a State and its emanations may not take advantage of the State’s own shortcomings in the implementation of Directives.   To such extent, if any, that the Government of the United Kingdom and its emanations had failed within the prescribed time to introduce adequate measures to combat sex discrimination in all such forms as the Directive required, that would accordingly be a shortcoming of which it could not take advantage.   Moreover, as between an employee of the Government or of an emanation of it on the one hand and the Government or that emanation as employer on the other, the Directive was directly enforceable.   Thus in June 1980 proceedings were launched in an Employment Tribunal by a Mrs Marshall against South West Hampshire Area Health Authority complaining of its discriminatory retirement policy.   The Employment Tribunal held that she could not complain under the Sex Discrimination Act but could do so by way of direct enforcement of the Directive, the Health Authority being relatively clearly an emanation of the State.   The Health Authority appealed to the EAT.   As for the Appellants before us, it would have been only a very bold one who would have launched comparable proceedings ahead of that appeal.   On that appeal, the Employment Appeal Tribunal held that Mrs Marshall failed both under the Sex Discrimination Act and under the Directive.   This time it was Mrs Marshall who appealed.   On the 12th March 1984 the Court of Appeal referred questions to Europe.   It would have been quite unreasonable to expect of any of our Appellants that she would have launched any proceedings pending the answer by the European Court of Justice to the questions which the Court of Appeal had posed.   On the 26th February 1986 the European Court of Justice delivered judgment in the Marshall case - see [1986] ICR 335.   It held that discrimination by a State authority in its capacity as employer could be directly attacked by its employee under the Directive.   In due course Mrs Marshall’s complaint was remitted to the Employment Tribunal.

15.	Even then it would still have been only a bold appellant who would have launched comparable proceedings because whereas the Health Authority in the Marshall case was by then clearly to be regarded as an emanation of the State, it was far from clear that a company such as British Gas would be so regarded.   Indeed, on the 23rd October 1986 in yet other  proceedings, the Employment Tribunal in relation a complaint by a Mrs Foster (quite unrelated to any proceedings before us) ruled that British Gas was not a State authority and was therefore entitled to rely on section 6 (4) of the 1974 Act, the provision then still extant and which excluded retirement from the ambit of sex discrimination.   That it was far from clear at the time that British Gas was an emanation of the State can be seen from the course which Mrs Foster’s proceedings took;  she lost both in the Employment Appeal Tribunal and in the Court of Appeal.

16.	However, Mrs Foster was, in late 1998, given leave to appeal to the House of Lords.   On the 4th May 1989 the House of Lords referred to the European Court of Justice questions concerning whether BG employees could rely on the Directive.   On the 12th July 1990 the European Court of Justice answered their request by so defining emanations of the State that it could be seen that BG was very likely to fall within that description.   Nonetheless, BG continued to contest Mrs Foster’s case.   Then, on the 18th April 1991, the House of Lords ruled in Mrs Foster’s favour and remitted her case to the Employment Tribunal on the footing that BG could not rely on the retirement exception in section 6 (4) of the Sex Discrimination Act, a provision, which by then, of course, had long since been repealed so far as concerned its effect on retirements on or after the 7th November 1987.   

17.	Reverting to the position of the Appellants before us, the case was, in the Summer of 1991, such that, had they turned their minds to proceedings, they would have seen that an arguable claim against BG in relation to pre-7th November 1987 retirements was a real possibility.   Mrs Foster’s case showed that the very highest courts had held that such a complaint was possible and could succeed.

18.	However, in Mrs Foster’s case the question of whether the complaint had been presented too late to be permitted to be heard under section 76 had not arisen - see [1987] ICR 52 at 53 (7).   The Appellants would, before launching proceedings in the Summer of 1991, have therefore needed to consider whether they could bring themselves within section 76 (5) and thereby get an extension of time for the launch of proceedings.   Given that they had a strong argument that until the House of Lords ruled in Mrs Foster’s favour on the 18th April 1991 they could not have been expected to have realised that the type of case which they would have wished to raise could be successful, they would, had they launched proceedings in 1991, have surely had a good case for a “just and equitable” extension under section 76 (5).   However, no proceedings were then launched.

19.	Then came a new development that (had it been considered at all) could only have encouraged the Appellants to believe they would be able to proceed notwithstanding that there was, even in 1991, a long lapse of time since their respective retirements.   On the 25th July 1991 in the Irish case of Emmott the European Court of Justice ruled that Member States and their emanations could not rely on procedural time-limits to bar claims against them where the position was that the State in question had not fully and clearly transposed into its domestic law the obligations cast upon it by the Directive - Emmott -v- Minister for Social Welfare [1993] ICR 8.   There was, in late 1991, some good reason to query whether the United Kingdom Government had thus adequately transposed the obligations cast upon it by the Directive into our domestic law and hence whether BG, as an emanation of a State, would have been able to raise section 76 against the Appellants had they then issued proceedings.   The United Kingdom legislation at the time put a cap on awards and conferred no power to award interest.   On the 14th October 1991 the House of Lords in Marshall No. (2) referred to the European Court of Justice questions as to whether such limitations were compatible with the Directive.   On the 2nd August 1993 the European Court of Justice ruled that such limitations, so far as concerned claims against emanations of a State, were incompatible with the Directive - see [1993] ICR 893.    At this point the Appellants, had they kept abreast of the swirling currents of the law, could have taken the position to be that not only were the claims that they might have had in mind capable of succeeding if presented but that, by reason of the decision in Emmott, British Gas might well be disabled from claiming that they were barred under section 76 as being out of time.   But still no claims were presented.

20.	Then on the 22nd November 1993 the Sex Discrimination and Equal Pay (Remedies) Regulations 1993 took off the cap on awards and conferred power on Employment Tribunals to award interest.   At this point it could fairly be said that the United Kingdom had for the first time fully and clearly embodied within its domestic law the requirements of the Directive (or at least that it could then not be seen not to have done so).   Accordingly a well-advised Appellant, considering the launch of proceedings, could then have feared that British Gas would then be able, after all, to rely on section 76 to bar the proceedings were they then to be launched. 

 21.	That fear would, if anything, have been heightened by the European Court of Justice’s decision in Fantask A/S [1998] All E.R. (EC) 1.   The European Court of Justice in that case received many complaints that Emmott had gone too far in disabling Member States and their emanations from relying upon procedural bars.   It held that so long as the procedural bar in question did not render the exercise of the community right in issue virtually impossible or extremely difficult and so long as the bar was no less favourable in community law cases than it was in comparable cases within the domestic law, such bars could be relied upon by a Member State or its emanations.   As neither section 76 nor any other provision sought to apply less favourable provisions to community law cases than to our own domestic ones and as, by way of the “just and equitable” possibility of extension, it could not be said either to render the exercise of community law rights virtually impossible or excessively difficult, the position after Fantask was thus that an appellant’s appreciation of her chances of success may have been a little less optimistic than would have been the case whilst Emmott had held sway.   

22.	It was against that complicated and varying background that the Employment Tribunal sought to put a date to when the Appellants, in relation to the law as it could be seen to have been from time to time, could reasonably have become aware of their respective rights to present a viable complaint.   The Employment Tribunal held that date to be not later than the 18th April 1991, the date on which the House of Lords had ruled in Mrs Foster’s favour that British Gas could not rely on the provisions of section 6 (4) as they then were - see [1991] ICR 463.   Mr O’Brien complains that this conclusion was an error of law in that it lumped all Appellants together and thereby precluded adequate consideration of their respective separate positions.   Moreover, whilst he argued that the 3 months referred to in section 76 (1) ran from the respective dates of the retirements, so far as concerned justice and equity he argued that time did not really count against the Appellants until the 22nd November 1993 (the coming into effect of the 1993 Regulations supra).  

23.	We see no error of law here on the Tribunal’s part in this area.   It was in our view appropriate for the Tribunal to seek to find a generally applicable date referable to the changing state of the law as from which it might be taken that an applicant with the requisite knowledge of the law and with access to informed legal advice might reasonably have been expected to have presented a complaint.   Doing so did not, in our view, preclude the separate investigation of separate cases, a subject to which the Tribunal can be seen to have given exceptionally careful attention, they describing every Appellant’s particular case separately.   Nor do we find error of law in the date chosen.   The coming into force of the 1993 Regulations would perhaps have provided a starting point after which delay would count against a particular Appellant under section 76 (5) had she said that she had carefully reviewed the position before that date but had concluded that because of the cap on awards or the inability of Tribunals to award interest or both she had thought that the claim was not, for the time being, worth presenting.   Unsurprisingly though, no such evidence was adduced.   Whilst the fears which the coming into force of 1993 Regulations and the decision in Fantask supra might have induced in anyone who had not, by the relevant dates, already launched proceedings could be taken to be a factor making the Tribunal’s date of the 18th April 1991 arguably a little ungenerous to the applicants, we do not see the selection of that date to be in error of law.

DELAYS AFTER APRIL 1991

24.	Apart from its fixing April 1991 as the date after which, in general, delay in the presentation of IT1s could be held against an Appellant under section 76 (5), the Tribunal carefully sought to ascribe dates from which each respective Appellant had, on the particular evidence, learned enough to make delay thereafter count against the justice and equity of her being given an extension of time.   In the course of that case-by-case examination the Tribunal asked itself whether a fair trial of the issues as between BG and the particular Appellant concerned was still possible.   Where the Employment Tribunal expressly refers to the unlikelihood of a fair trial being possible, that factor plainly played a part in the Tribunal’s overall assessment of the justice and equity in those respective cases.   If, in general, the Tribunal erred in assessing the ingredients necessary for a fair trial (a question we shall come on to) then in those cases when, accordingly, delay alone was not held to have barred the claimant, its overall conclusion would be vulnerable as it may be that the Tribunal would not have concluded as it did had it either relied only on delay or had it correctly addressed the ingredients necessary for a fair trial.

25.	In the cases of Mrs Bellingham, Mrs Callaghan, Mrs Costiff, Mrs Jones, Mrs Moore, Mrs Perry, Mrs Pryke, Mrs Simms, Mrs Smith, Mrs Thornton, Mrs Walker, Mrs Watson and Mrs Whereat the Tribunal in its assessment of the justice and equity of those Appellants’ respective positions expressly referred to the unlikelihood of a fair trial being still available.   In all those cases, in other words, the Tribunal did not rely only upon post-April 1991 delay in its conclusion that there should be no extension of time.   In consequence, in all those cases there may have been an error of law if the Tribunal misdirected itself as to the ingredients necessary for a fair trial.

26.	As for Mrs Green and Mrs Taylor, whilst the Employment Tribunal did not expressly refer to the unavailability of a fair trial, it did refer to evidential difficulties were there to be a trial, difficulties pointing towards the unavailability of a fair trial.   Accordingly, despite no such express mention having been made, there is no sufficient reason to distinguish between their cases and those in the greater number of cases which we have just described.  

27.	As for Mrs Tomkinson, her IT1 was not presented until the 30th August 1996.   She alone appears to have been denied extension of time solely by reference to delay, without the possible unavailability of a fair trial coming into consideration.   We revert later to this point but, with a degree of reluctance, we conclude that it cannot be said to be an error of law on a Tribunal’s part to decide not to extend time to a claimant who has slept on her rights from prior to late June 1996 (as the Tribunal held in Mrs Tomkinson’s case) to the 30th August 1996, especially when the retirement complained of had taken place as far back as July 1986.   The barring of Mrs Tomkinson’s claims seems to have been quite unaffected by the consideration, that we shall come on to, as the unavailability of a fair trial;  if she is to succeed on her appeal to us she will need to attract some other form of escape from the Tribunal’s reasoning.   We will revert later to her exceptional case, which has troubled us.

WOULD A FAIR TRIAL STILL BE POSSIBLE?

28.	In DPP -v- Marshall [1998] ICR 518 at 528 Morison J, giving the judgment of the EAT, said:-

“The [Employment] Tribunal must balance all the factors which are relevant, including, importantly and perhaps crucially, whether it is now possible to have a fair trial of the issues raised by the complaint.”

We respectfully agree although, had we needed to, we might have doubted whether, as that case goes on to suggest, it would never be right to deny an extension of time wherever a fair trial was still possible.   There are, for example, forms of prejudice that a party might suffer unrelated to the availability of a fair trial such as might make it unjust or inequitable to grant an extension.   As it seems to us, a fair trial’s unavailability can be conclusive against an extension but that its availability may not, on its own, be sufficient in favour of one.   But, whether or not that is the case, where both liability and remedy are substantially in issue, the availability or not of a fair trial needs to be determined by reference to whether a just resolution of both those broad issues can still be arrived at.

29.	What was in issue here?   Looking first at remedies, if a case in sex discrimination is held to be well-founded the Tribunal may, under section 65 of the 1975 Act, make an order declaratory of rights, award compensation, or make recommendations as to the amelioration of the adverse effect of the discrimination on the complainant concerned.   The Tribunal in such a case chooses which of those it considers to be just and equitable.   As for what the Appellants were claiming, we have only a few of the IT1s in our papers and they show a variety amongst themselves.   Box 1 of an IT1 is for the description of the type of complaint that is made;  Mrs Simms’ says “Compensation for enforced retirement at statutory age of 60”;  Mrs Thornton’s says “Sex discrimination”;  Mrs Newnham’s says “Sexual Discrimination by forced retirement at age 60” and Mrs Parker’s Box 1 is left blank.   However, no IT1 that we have seen appears to abandon any of the statutorily-available forms of remedy and, given that the Tribunal picks which of them it considers to be just and equitable, we shall take it that each applicant was claiming all such forms of remedy as the Tribunal might ultimately think it just and equitable to award.   

30.	As BG has long since both acknowledged that its erstwhile retirement policy was discriminatory and has abandoned it, it would seem unlikely that any Appellant, if successful on liability, would be pressing only for a declaration.   Equally, for there to be a recommendation under section 65 (1) (c) - for example as to a modest increase in pension to reflect a woman’s loss of an ability to have increased her pension by continuing to work to 65 - new and difficult ground would need to be broken for such an award to be made.   Quite the most likely remedy to be pressed for by the Appellants, were they to be successful, would be for compensation under section 65 (1) (b).   Such compensation may include injury to feelings - section 66 (4).

31.	BG’s IT3, in every case in which we have seen one, specifically puts the claimants to proof of any loss alleged and of any claim to mitigation of loss.   Accordingly, unless an Appellant’s case comes to be denied an extension of time on other grounds, the Employment Tribunal, considering whether a fair trial was still a possibility, would have needed to consider, inter alia, whether or not an assessment of compensation (“quantum”), fair to both sides, would still be available, approaching the question of compensation as would a County Court in a claim for tort - section 65 (1) (b) and section 66 (1).   

32.	As for liability, BG’s IT3s, using a standard form, did not admit (and, under the convention applicable to pleadings, therefore traversed as effectively as a straight denial would have done) that the Appellants’ terminations of Employment were caused by any discriminatory act of BG.   BG was thus formally putting in issue whether it had treated each Appellant less favourably than it treated men, whether the Appellants were employed by it at an establishment in Great Britain and whether it had dismissed the Appellants or subjected them to any other detriment - section 1 (1) (a) and section 6 (2) (b).   However, in practical terms, BG’s former employment of the Appellants and their employment within Great Britain were never in question and the Tribunal specifically held that the operation of the earlier retirement rule by BG was as the Appellants had alleged it had been and had been unlawful.   Moreover, as we indicated earlier, it seems to us inescapable, even without enquiry into each individual case, that the retirement policy represented less favourable treatment of women on the ground of sex.   The issue of liability would thus have come down to whether or not there had been dismissals or whether, failing dismissals, the Appellants had, within section 6 (2) (b), been subjected “to any other detriment”.

33.	To regard the Appellants “as dismissed” when they had retired as they had back in the years between 1979 and 1987 would perhaps involve giving the word a meaning which it might very well not have had until the amendment of the 7th November 1987 to which we have referred.   We must not be thought to be holding that there were not dismissals but we put that issue aside.   But, as for “any other detriment”, we are attracted, indeed bound, by the meaning given to the word “detriment” in Jeremiah -v- Ministry of Defence [1979] IRLR 436 C.A..   Brandon LJ at paragraph 22 said:-

“I do not regard the expression “subjecting to any other detriment” as used in section 6 (2) (b), as meaning anything more than “putting under a disadvantage.”

At paragraph 47 Brightman LJ said (with our emphasis):-

“I think a detriment exists if a reasonable man would or might take the view that [the matter complained of] was in all the circumstances to his detriment.”

He commended that objective approach rather than one involving an investigation by a Tribunal in each individual case whether the particular worker did or did not think that there had been a detriment.

34.	On such an objective approach it seems to us that there was here a detriment;  the women at 60 were denied the opportunity (whether they would have exercised it or not) to continue to work for BG.   In Jeremiah Brightman L.J. said that a mere deprivation of choice for one sex was not necessarily a detriment but would be likely to be so if the choice was associated with a detriment.   Here the deprivation of a choice was associated with an inability, regardless of a woman’s wishes and ability, for her to continue to be remunerated by her employer, to continue to build-up pension rights by way of that employer’s contribution, perhaps to receive sickness or other benefits related to her employment and to keep up, exercise and perhaps improve her skills in the course of that employment.

35.	Moreover, we are unconvinced by Mr Jones’ argument which includes, in effect, that one looks at the position only upon the women achieving 60.   If she then wishes to retire, he argues, she has suffered no detriment.   That is an over-simplification.   Few, if any, in, say, their 30’s, 40’s, or 50’s can be sure what their wishes will be as to retirement at 60 when 60 comes, if it does.   What will their health then be, what will a spouse or partner’s health then be;  what needs will their children have;  what will then be the pleasures or otherwise of the work scene;  what savings will they have made, what pension or other provision will be available to them;  what will the cost of living then be?   What rent or mortgage payments will then be payable?   In the face of such imponderables, the fact that a woman will have to retire at 60 is likely to have affected her not only at 60 but may very well have affected her life adversely much earlier;  for example, the kind of mortgage she or she and her husband or partner could acquire at her age 45 (and hence where she might live and the kind of property she might buy) could have been determined by the fact that she had, say, only 15 and not 20 years work and hence related earned income available to her.   Whether she could afford particular travel and holidays in her 50’s could have been affected by her feeling it prudent, given that she would have to stop work at age 60, to put money aside for retirement.   Even minor matters such as hire-purchase commitments for, let us say, a new car, furniture, a television or a washing machine could be affected adversely by the consideration, some time before age 60 was achieved, that pay would then stop.   It cannot follow from the fact that a woman, had she been given a free choice at age 60 to continue in work or not, would have chosen to retire, that, as that would have been her choice when age 60 arrived, she had not suffered any detriment by reason of her earlier being denied the prospective choice, which men had had, to continue to work after age 60.   Where a retirement policy such as BG’s erstwhile one has been in place, a woman might choose to retire at 60 because, having thought that to be inevitable, she had, over the previous years, forfeited the benefits which greater immediate expenditure might have acquired for her in order to provide for herself or her family on ceasing work at age 60.   In R -v- Birmingham City Council ex parte Equal Opportunities Commission IRLR 173 H.L. Lord Goff at paragraph 12 spoke of a policy which (as to the education of boys and girls) deprived girls of a choice which was valued by them (or at least their parents) and which (even though others might take a different view) was a choice obviously valued, on reasonable grounds, by many others.   In our case one cannot, in our judgment, disprove the value of an option to work beyond age 60 or disprove the detriment of having had no such option by obtaining an affirmative answer from the woman in question that she would, at 60, have chosen to retire at 60.   Further, as was the reasoning in El Vinos supra per Eveleigh L.J., as there was demand by men for work after age 60, it could not be assumed there would have been no true demand for it, on reasonable grounds, by women.   Indeed, as we see it, it could only be assumed, firstly, that a choice to continue after age 60 would have been obviously valued, on reasonable grounds, by women and would have been so valued over periods beginning years before the attainment of that age and, secondly, that the deprivation of that choice was a detriment.

36.	Accordingly, and adopting the robust view of “pleadings” adopted (and properly adopted) by Employment Tribunals, the Employment Tribunal in the case at hand could and should have looked beyond the formal non-admission as to liability and have seen that in truth “liability” could only have been found in the Appellants’ favour.   They should have seen that (leaving aside whether there had been dismissals) there had plainly been detriments suffered irrespective of any examination into whether this appellant or that had been able and had wished, on attaining 60, to continue in her employment with BG.   The women, throughout such parts of their employment by BG as fall after the directive of 9th February 1976, had laboured under an unlawful and discriminatory policy which was likely to have coloured their lives in many different adverse ways.   In turn that meant that the Tribunal could and should have seen that a fair trial on liability did not depend on whether a fair examination of the Appellants’ respective abilities and wishes on attaining 60 was still possible.

37.	Mr Jones did not recall any issue as to “or other detriment” being raised below but, whilst much does not seem to have been made of the point, a passage read to us from the written submissions of Miss George, Counsel then appearing for a number of applicants, showed that the subject was raised.   She had submitted, inter alia, that for an employee to be subjected to an unlawful and discriminatory retirement policy was its own detriment.

38.	On the issue of a fair trial the Tribunal held as follows:-

“48.	Since the operation of the retirement rule by the Respondents is not in issue, nor is it in dispute that this was unlawful, what could be at issue in respect of certain applicants is whether or not the individual wished to retire and whether they suffered detriment as a result of the operation of the Respondents retirement policy.   In the case of many of the applicants the Tribunal has serious doubts as to whether a fair trial of those issues could take place in view of the length of time which has  elapsed since the retirement, the availability of witnesses, and the effect of the delay on the memories of likely witnesses.
 49.	Mr Jones contended that there was a further difficulty in that, as a result of an absence of particular personnel records, the rate of payment to individuals might be difficult to ascertain.   The Tribunal has not taken this into account in exercising its discretion.   The reason it has adopted this approach is that it considers records as to the amount of payment made to an applicant during her employment relate only to matters of quantum and not liability.   The Tribunal in considering whether or not exercise the discretion conferred upon it by section 76 (5) of the Act has considered only whether or not a fair trial as to the issue of liability can take place.   The Tribunal considers quantum of any remedy to be a different issue and, in any event, it is not convinced that the difficulties in ascertaining the quantum of any remedy are as great as was contended by Mr Jones.”

39.	Paragraph 49 needs correcting;  when the Tribunal says it had considered only whether a fair trial as to liability could take place it plainly did not mean to indicate it had not considered other factors such as delay;  it meant only liability as between liability and quantum.   However, even thus corrected, in our judgment those two paragraphs embody material errors of law.   Firstly, it was no necessary part of a decision as to liability to determine whether any individual had wished to retire at age 60 and difficulties in, for example, determining whether a woman had or had not then wished to continue or was or was not able to continue in her employment would thus not necessarily have affected whether or not a fair trial of liability was still possible.   Secondly, even if it were to prove wrong to take there to have been detriments in the way in which we have held there to have been, it would, in any event, have been an error of law, in our view, to have done as the Tribunal did, namely to regard the material question to be put to applicants as being whether, when already at age 60, they had wished to retire at that age.   As we have described, even an affirmative answer would not have disproved detriment.   Thirdly, those first two points being so, it was necessary for the Tribunal to have gone on to inquire into whether a fair trial was possible of the issues in relation to quantum of compensation, at any rate so long as no Appellant abandoned her claim for compensation.

40.	It may be said, and Mr O’Brien says it, that the Tribunal had considered, as if a “liability” issue, matters which were truly only “quantum” issues.   It is, therefore, tempting to say that as, albeit under the wrong description, the Tribunal thought that a fair trial was not possible because of the difficulties in ascertaining what can now be seen to be quantum issues, they would, even if they had properly directed themselves, have had to have concluded that a fair trial as to quantum was not possible and thus would have had to have arrived at the very same conclusion as the one at which they did.   However, that course is not open to us;  once the case on liability is made good then there may be made some award (a declaration or, although we see the difficulties, some recommendation under section 65 (1) (a) or (c)) as to which considerations of a woman’s ability or wish at age 60 to have remained in employment would play no significant part at all.   An Appellant whose claims runs into difficulties as to quantum may prefer such relief to none at all, even if such relief had not initially been pressed for.   Moreover, the Employment Tribunal might regard such considerations as less importance in relation to quantum than they had ascribed to them (wrongly) in relation to liability.   It by no means follows, had they seen such considerations as relating to quantum, that they would have still have concluded as they did in relation to the inability to have a fair trial.   

41.	Because, as we have seen, the Tribunal, in relation to the greater number of Appellants, did not determine the justice and equity of an extension solely by reference to delay but included within their purview the mistaken view which they took of the unavailability of a fair trial as to liability, as to that greater number, we see no alternative but to remit the matter to the Employment Tribunal.   We shall return below to the form of that remission.

MRS NEWNHAM

42.	On behalf of Mrs Newnham Mr Duggan (apart from argument on the more general points which we have already dealt with) argued that the Employment Tribunal had, in the exercise of their discretion, taken into account a factor which they should not have done in considering, as they did, that by not later than the 18th April 1991 (the House of Lords decision in Mrs Foster’s case) Mrs Newnham, as all other Appellants, could reasonably have become aware of her right to present a viable complaint.   As a consideration of general application, as we have said, we find no fault in that approach by the Employment Tribunal.   If (as is the case) ignorance of the law is to be no sufficient excuse for delaying the presentation of a complaint, it seems inevitable that, amongst the considerations that a Tribunal will need to take account of, there will fall to be included a consideration of the date from which the complainant could reasonably be expected to have become aware of her right to present a worthwhile complaint - see DPP -v Marshall [1998] ICR 518 EAT at 528 f.

43.	As a matter of particular application, Mr Duggan criticises the reference to April 1991 as, he says, Mrs Newnham’s evidence was that she had first found out that she could bring a claim only the 13th June 1996 and that she complained the very next day to BG’s Senior Legal Adviser and presented her IT1 only a few days later, on the 26th June 1996.   But the Tribunal finds as a fact that her recollection was not accurate and that on the balance of probabilities she had known of a possibility of making a claim no later than the end of 1995.   Those are facts found by the Employment Tribunal which we have no good reason to doubt  and, as it seems to us, they destroy this first part of Mr Duggan’s particular argument.   Mr Duggan says that no explanation is given by the Tribunal as to why they selected the end of 1995 and complains that, for want of any such explanation, the Tribunal fails the well-known test provided by Meek -v- The City of Birmingham.   However, where specific evidence given by a witness is disbelieved or found inaccurate, a Tribunal has to do the best it can to come to a conclusion in the absence of that specific evidence.   Here, over a very long hearing, the Tribunal heard a great deal of evidence as to what was discussed between and by the Appellants at various stages, what newspapers were read, what articles were published and so on.   As to why, on this particular issue, Mrs Newnham lost, that was plainly because her evidence was not accepted and because the Tribunal had accordingly to revert to the general case.   We cannot say that the Meek -v- The City of Birmingham test was not satisfied.

44.	Next Mr Duggan argued that time should only be taken to have run against Mrs Newnham after the United Kingdom had fully and clearly transposed into its domestic law all the relevant obligations of the Directive and that that did not occur until the 22nd November 1993, the date of the Sex Discrimination and Equal Pay (Remedies) Regulations 1993.   However, firstly, that argument depends on Emmott which, after Fantask, can now be seen not to have had the force once attributed to it.   Secondly, as Mr Jones points out, in Emmott there was a particularly strong case for barring the States’ own reliance upon the time bar within in its own domestic law as in that case the State,  by the Minister of Social Welfare, had earlier written to Miss Emmott stating that because the Directive was still the subject of litigation no decision could be taken in relation to her claim - p. 12 b-c.   Even before Fantask, the Emmott principle was being confined - see Preston -v- Wolverhampton Healthcare NHS Trust [1997] IRLR C.A. at paragraph 54, p. 239.   Thirdly, the Tribunal held:-

“...... Prior to those regulations a complainant could reasonably have become aware of her right to present a worthwhile complaint against the Respondents in respect of her retirement.   The 1993 Regulations affected only the quantum of what could be recovered.   Not one of the applicants suggested to the Tribunal that they did not take proceedings because the quantum of what could have been recovered was insufficient.”

That seems to us to be a good reason not to start the beginning of adverse delay as late as November 1993.

45.	A notable feature of the Tribunal’s findings in relation to Mrs Newnham is that they do not include any reliance upon the difficulties in or the unlikelihood of still obtaining a fair trial as to liability.   The next sentence after their conclusion that it was not just and equitable to extend time is (so far as material):-

“The Tribunal reaches their conclusion because it is not satisfied that Mrs Newnham acted promptly having become aware of the illegality of the respondents actions ....”

Accordingly, there is a reason to distinguish her case from that of the greater number of the Appellants where the “fair trial” issue was a significant factor.   Her case cannot be distinguished from that of Mrs Tomkinson which we shall come on to.

MRS PARKER

46.	Although Mrs Parker had her own separate Notice of Appeal she appeared, as did all other Appellants save Mrs Newnham, by Mr O’Brien, and we see no good reason to distinguish her case from that of her colleagues.   Like Mrs Newnham she gave evidence as to a particular date - in her case the 13th June 1996 - as a date on which she first learned that compensation was possibly available to her.   She presented her IT1 only shortly after that date, on the 15th July 1996.   Unfortunately for her, her evidence was held to have been confused and her memory such that it could safely be relied upon.   As was the position in Mrs Newnham’s case, the Employment Tribunal had to do the best they could in the absence of reliable evidence specifically relating to her and we cannot say that they erred in law in doing so.   However in Mrs Parker’s case the Tribunal expressly took account of what one might call an “unavailability of fair trial” factor, namely whether her memory was such that the Tribunal at a future full hearing would be able to make safe findings on whether she had wished to stay in employment after the age of 60.   To that extent her case falls to be dealt with as is the general body of the Appellants’ cases and her case is to be remitted as are the others.   

MRS TOMKINSON

47.	If Mrs Tomkinson is to overturn the decision against her she can only do so on the grounds raised by Mr O’Brien on her behalf but which we have not yet dealt with.

48.	There was, said Mr O’Brien, a serious failure on BG’s part adequately to retain and store and make available personnel records, including records as to rates of pay, and that, in so far as that failure created evidential difficulties and jeopardised a fair trial, then BG could not rely upon that jeopardy.   However, the Appellants retired many years ago at a time when, under the apparently then-applicable domestic statute law, no claim that a retirement policy  was discriminatory could be made.   BG or its predecessors had a policy, in general, of keeping papers for 6 years.   It cannot be said that that policy was unreasonable in the circumstances then obtaining.   Further, the evidence of Miss S.M. Franklin, a Solicitor employed by BG, showed that full and conscientious enquiries had been made to establish what relevant papers could be found;   those found were made available.   The Tribunal made no finding critical of BG’s record-keeping or of Miss Franklin’s efforts and we see no error in law in its permitting BG to be heard to complain of the evidential difficulties that arose in the absence of better papers.   

49.	Next Mr O’Brien complains that the Tribunal failed to notice such parts of the delay as was caused by the Tribunal’s own processes.   He complained that not all delay after April 1991 could be counted against the Appellants.   Mr O’Brien accepts that this point was not raised below.   He says it was not raised below because it was so obvious that it should have been taken to account even without being mentioned.   That, in our judgment, is not the case;  BG would have needed to have known that the point was being taken in order to consider whether and, if so, how to counter it.   The Tribunal would have needed to know the point was being taken in order to recognise that it had to rule upon it.   More importantly perhaps, evidence would have been needed to have been led to find what delays, if any, were attributable to the Appellants themselves and their wishes (for example, to consolidate all cases) or to BG and what delay was fairly attributable to the Tribunal processes themselves.   In our view this point cannot be taken here for the first time.

50.	Finally Mr O’Brien argues that the Tribunal’s decision was perverse and in particular that it can never be right, he claims, to bar a claim simply on the ground that a prospective claimant had slept upon her rights.   It is only in Mrs Tomkinson’s and Mrs Newnham’s cases that an Appellant was barred upon only that account.   Mr O’Brien’s argument seems to imply that no bar referable only to the lapse of time before the issue of proceedings can be just.   However, Fantask supra does not go that far and few restrictions are more familiar than Limitation Acts which operate upon just such a principle.   Even in relation to community law rights, a party can expect to lose those rights by a failure timeously to exercise them.   When, as in Mrs Tomkinson’s case, the main matter being considered as the subject of complaint had occurred some 10 years before, there was a quite exceptional need for a prompt exercise of the right, once a consciousness of an ability to claim had dawned.   Given that Parliament prescribed an initial period of only 3 months in section 76 (1), it cannot in our view be taken to have been perverse of the Tribunal to have barred Mrs Tomkinson’s claim by reason of a delay, some 10 years after retirement, from “prior to late June 1996” to 30th August 1996.   Although she will no doubt feel it to be hard upon her to distinguish her case from that of her colleagues in such a way, we cannot see error of law in the Tribunal’s decision so far as it concerned Mrs Tomkinson.    In her case and also in Mrs Newnham’s the appeal is dismissed.

51.	This conclusion has troubled us because it appears to put Mrs Tomkinson and Mrs Newnham, who may have been thought to have had a stronger case than some others for a just and equitable extension under section 76 (5), in a worse case than their colleagues.   Of course, whether either is truly in a worse case than her colleagues cannot be determined until the outcome is known of the remission of their colleagues’ cases.   But the reasons why we see ourselves as having to dismiss Mrs Tomkinson’s and Mrs Newnham’s appeals are that doubts as to the unavailability of a fair trial on liability seem to play no part of the Tribunal’s reasons in their cases and because adjudication of what is just and equitable is essentially a matter for the Employment Tribunal which saw and heard the Appellant giving evidence.   The Tribunal had serious doubts as to their evidence and commented on its inconsistency or accuracy.   As we have noted, the burden on an appellant in such a case is a heavy one - see T.J. Hutchison supra - and that whether or not we ourselves would have seen delay from “prior to late-June 1996” to the 31st August 1996 (in Mrs Tomkinson’s case) or the more general view (in Mrs Newnham’s case) that she had failed to act promptly as sufficient on its own to bar the justice and equity of an extension, we cannot say that the Tribunal was  perverse in holding that to have been the case.   It may have been little more than fortuitous that the error of law which, in our judgment, the Tribunal made as to unavailability of a fair trial on liability was not mentioned in the reasoning in the Newnham and Tomkinson cases but the fact remains that it was not so included and we cannot assume that the distinction was not intentional.

THE REMISSION

52.	We allow the appeals in all cases save that of Mrs Newnham and Mrs Tomkinson and remit them for further consideration to the same Tribunal as before.   Whilst the tribunal will need to consider the exercise of their discretion under section 76 (5) generally in the light of all relevant circumstances, they will need to reflect in particular, in the light of this judgment, whether a fair trial as to “liability” is unavailable upon grounds other than the quantum-related grounds to which they had referred in their paragraphs 48 and 49 and, for the first time, also consider whether a fair trial of quantum issues is still possible (at all events, in all  cases where a claim for monetary compensation for loss is not abandoned).   Whilst the Tribunal will wish to receive further argument, we see no need in principle for the Employment Tribunal to receive fresh evidence;  the case is more one for a fresh consideration of such evidence as has already been received.   However, as it is now over a year since the last day of the hearing below, it could be that the Employment Tribunal would wish to have the evidence refreshed, at any rate on some topics.   Accordingly, the Tribunal should be enabled at the remission to receive fresh evidence only to such, if any, extent as it directs and any party is to be at liberty to apply to the Employment Tribunal ahead of the main remission, in order to obtain such a direction.