Appeal No. EAT/0693/02/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 October 2002

Before
THE HONOURABLE MR JUSTICE WALL
MR P R A JACQUES CBE
MR P M SMITH

MR L S JOHN	APPELLANT

COLLEGE OF NORTH EAST LONDON	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED	

MR JUSTICE WALL

1.	This is the Preliminary Hearing of an appeal by Mr Leslie John against the decision of the Employment Tribunal held at London Central on 28 March 2002 with reasons being given and sent to the parties on 17 April 2002.  The decision of the Tribunal was that the Originating Application by Mr John should be struck out and dismissed.

2.	Mr John appeals against that decision and has asked today that the appeal be adjourned on the basis that he is in the middle of preparation for it and since he will not have representation, and will have to represent himself, he wishes to complete his preparation before he appears.  He says that he would be unable to do that before 15 November 2002 and asks us to rearrange the hearing.

3.	We have decided that, in the particular circumstances of the case that we will grant Mr John an adjournment to a date to be fixed but we are giving a short judgment which we invite him to consider carefully before he proceeds or seeks to proceed with his appeal.  

4.	In his form IT1 issued on 29 November 2001 Mr John seeks retrospective access to the Teachers Vocational Pension Scheme and he claims unlawful discrimination on the grounds of sex and breach of Article 119 of the Treaty of Rome.  This is one of a very large category of cases in which persons who were employed part-time and excluded from their employers’ pension scheme now seek retrospective correction of what they  (in many cases rightly) perceive to be an injustice.  

5.	Mr Leslie John was born on 11 January 1926.  So he is now 76.  Between September 1981 and August 1988 he was employed as a part-time lecturer teaching Law, English and Mathematics at the Institute of Further Education in Haringey and he was paid on an hourly basis.  	In September 1988, he was appointed to a full-time post with the same employer which he appears to have retained until 1994.  In our papers is the first page of a letter from the College of North East London dated 15 December 1994 and although it is marked ‘without prejudice’ it makes clear that the normal age for retirement for College staff was 65 and that Mr John’s termination of employment took place on 31 December 1994.  At that point he was of course rising 69, so he had plainly stayed on (as the letter itself makes clear) well after his 65th birthday.  In any event, looking at the matter at its most favourable from Mr John’s point of view, the latest date he can produce for the termination of his employment with the Respondent is 31 December 1994.

6.	Mr John’s part-time employment with the College between 1981 and 1988 excluded him from the membership of the College’s pension scheme, and following the decision of the ECJ in the cases of Vroege and Fisscher, Mr John applied to the Employment Tribunal on the basis that his exclusion from the occupational pension scheme during his period of part-time employment was unlawful.  Initially his claim was stayed pending the decision of the House of Lords in a series of test cases, known as Preston and Others v Wolverhampton Healthcare NHS Trust.  However, once the House of Lords reached its decision (following the referral of a number of questions to the European Court of Justice for its opinion) the Employment Tribunal at London Central heard Mr John’s application on 28 March 2002 and struck it out.

7.	It did so on the simple basis that the House of Lords had held in Preston that a claim such as that being brought by Mr John had to be brought within six months of the end of the employment relationship pursuant to section 2(4) of the Equal Pay Act 1970.
8.	The reasons given by the Tribunal are short.  They can be summarised as follows.  They refer to the presentation of the Originating Application in December 2001 claiming retrospective access to the pension scheme.  No Notice of Appearance was presented by the Respondent.  However, the decision of the House of Lords in Preston established that claims in part-time pension cases such as the present must be brought within six months of the end of the employment relationship pursuant to Section 2(4) of the Act. On the face of it the Applicant was some years out of time with his claim, since he gave his date of employment as September 1982 to August 1988.

9.	In correspondence with the Tribunal the Applicant confirmed that in fact he entered full-time employment with the College in 1988 and worked full-time until 31 December 1994 when he was asked to retire.  Although indicating that he continued an employment relationship with the Respondent thereafter, he was unable to provide any details of this.  In these circumstances, the matter was listed for hearing, so that Mr. John could make any representations he wished and present evidence (if he had it) to show cause why his claim should not be struck out as being out of time.

10.	At the hearing, the Applicant told the Tribunal that from his retirement date he began to receive a pension and the Respondent employed another lecturer to come in and do some of his work.  He was unable to provide any information or evidence that he had in fact carried out any work for the College after his date of retirement, or been paid by the College.  Documents were provided to show that he had retired on 31 December 1994.

11.	It was therefore clear to the Tribunal that the employment relationship ended on that date, namely 31 December 1994, and that the Applicant’s Originating Application was presented outside the six months period allowed by the law for bringing the claim.  The Tribunal therefore ordered the claim to be struck out.  

12.	Mr John argues that section 2(4) should not apply in this case.  However, with respect to him, we think he may well be confusing the House of Lords’ ruling which makes it clear that the Equal Pay Act cannot be used to limit a backdated claim to two years before the date of the institution of proceedings, with the rule that a claim must be brought within six months of the termination of employment.

13.	Our understanding is that the House of Lords clearly found that the six months limitation period was lawful and that there was no discretion to extend it.  In these circumstances it will be immediately apparent that Mr John has a very substantial hill to climb if he is to persuade this Tribunal that his appeal contains a point of law which is arguable.  We therefore urge him to consider very carefully a copy of the transcript of this judgment which we will make available to him and to think hard before he pursues it.

14.	If he wishes to seek to persuade us that he has an arguable point of law on the Preliminary Hearing, no doubt he will seek for the appeal to be reinstated and for his arguments to be placed before us.  But he urge him caution in this respect since at the moment it seems to us very difficult to see a way out of the dilemma which he faces and which is faced by many people in his position.  But be that as it may we are not dismissing the appeal and we have not closed our mind to it.  We simply urge caution before Mr John proceeds.  If in the event he decides not to proceed we invite him to notify the Tribunal to that effect.  If on the other hand he wishes to proceed no doubt another date can be fixed for the preliminary hearing of the appeal.