Appeal No. EAT/1051/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 September 2002

Before
HIS HONOUR JUDGE PETER CLARK
MR D CHADWICK
LORD DAVIES OF COITY CBE

MRS D M JONES	APPELLANT

KENT COUNTY COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MRS D M JONES
(In Person)	
For the Respondent	NEITHER PRESENT NOR REPRESENTED	

JUDGE PETER CLARK

1.	This appeal in the matter of Jones and Kent County Council comes to us for a full hearing on two procedural points, identified by His Honour Judge Wilkie QC in the judgment which he delivered at a Preliminary Hearing held in this case on 6 February 2002.  The background is as follows.

2.	Mrs Jones was employed by the Respondent, Kent County Council, as a part-time clerical assistant from September 1978 until termination of that employment on 16 May 1993.  Thereafter she was not employed by the Respondent, although later, in November 1993, she tells us that she entered employment with the London Borough of Greenwich.  That employment, which lasted until 15 September 1994 is not material to the issues raised in this case.

3.	On 23 December 1994 she presented an Originating Application to the then Industrial Tribunal complaining of discrimination contrary to Article 119 (now 141) of the Treaty of Rome and/or the Equal Pay Act 1970 and/or the Sex Discrimination Act 1975.  Her complaint was that she was denied entry to the Respondent’s Superannuation Scheme between 1 September 1978 and 1 January 1988 because she was a part-time worker.  She named as her representative the Trade Union Unison, through its appropriate officer.
 
4.	The Respondent entered a Notice of Appearance, taking, among other points, a limitation defence in relation to the Equal Pay claim.  Section 2(4) of the Equal Pay Act 1970 provides that no claim in respect of the operation of an equality clause relating to a woman’s employment shall be referred to an Industrial Tribunal otherwise and by virtue of sub-section (3) above if she has not been employed in the employment within the 6 months preceding the date of the reference.  There is no provision in that Act for that time limit to be extended.

5.	Thereafter Mrs Jones’ claim joined the many thousands of part-time pension cases held in abeyance pending certain rulings by the higher Courts.  Of particular materiality were the European Court of Justice judgment in Preston and Wolverhampton Healthcare NHS Trust [2000] IRLR 506 and the subsequent judgment of the House of Lords, which had referred the case of Preston to the European Court, in Preston (No 2) [2001] IRLR 237, delivered on 8 Febraury 2001.  The effect of those decisions and in particular the House of Lords’ decision was to declare the 6 months time limit in section 2(4) of the Equal Pay Act compatible with community law.  The present claim can only be brought under the Equal Pay Act.

6.	Following the House of Lords’ decision letters were sent by Employment Tribunals to Applicants whose claims were presented outside the 6 months time limit, inviting them to show cause why their claims should not be struck out under what was then Rule 13(2)(d) of the Employment Tribunal Rules of Procedure 1993.  It is clear that such an opportunity to show cause is mandatory under the provisions of Rule 13(3).  See Beacard Property v Day [1984] ICR 837 concerned with the similar rule, Rule 4(7) of the 1993 Rules.
 
7.	In the present case, by an order promulgated with Extended Reasons on 25 July 2001, a chairman sitting at the London (S) Employment Tribunal struck out this Appellant’s claim.  In those reasons he referred to a letter to show cause sent to the Appellant and dated 22 March 2001 to which she had not responded.  Mrs Jones wrote to the Employment Tribunal on 1 August 2001 stating that she had not received a letter dated 22 March; she had not been given an opportunity to show cause why her claim should not be struck out; that was a violation of her rights under the Human Rights Act; she wished to appeal.  That letter evoked a response from the Employment Tribunal secretariat dated 5 September 2001, asking for the last date of employment with the Respondent.  In the event no determination on the review application, as it was deemed to be, either on paper or by way of a review hearing took place.  Mrs Jones then appealed to this Employment Appeal Tribunal.

8.	At the Preliminary Hearing Judge Wilkie identified the following arguable grounds of appeal, Mrs Jones then being represented by Counsel under the ELAAS pro bono scheme; first, was the strike out order made unlawfully in that no letter to show cause was sent to Mrs Jones (no copy having been found on the Employment Tribunal file) or if it was, it was not received, secondly, the Employment Tribunal failed to adjudicate on the review application as it was deemed to be.  

9.	This appeal is not opposed by the Respondent, which does not appear today.  The procedural failings identified at the Preliminary Hearing appear to us to be well-founded; in these circumstances the next stage would normally be for us to allow the appeal and remit the matter to the Employment Tribunal for a review hearing to be held.  However, that is not the only possible outcome.

10.	During submissions we drew Mrs Jones’ attention to the statement of principle to be found in the judgment of Mummery LJ in Bache v Essex County Council [2001] IRLR 251, where he said, at paragraph 35(5):

“Even if the Appeal Tribunal or the Court of Appeal find that a ruling has been made in error of law it does not follow that the appeal should be allowed in that the case should be reheard by the Tribunal in whole or in part.  This is not to diminish the importance of procedural fairness.  It is as important in many ways as the application to the substantive law to the facts of the case but the response to the finding of an error of law and procedure should be proportionate.  If the appeal Tribunal is sure that the result of the case is unarguably right and that the outcome would have been the same even if the error of procedure had not occurred it would be unnecessary, unjust and disproportionate to remit the case to the Tribunal for a rehearing.”

11.	In the present case it seems to us inevitable that if the matter is returned for review and the Appellant is given a full opportunity at a hearing to show cause why her claim should not be struck out she will not succeed.  On her case the relevant employment with the Respondent ended more than 6 months prior to the presentation of her Originating Application.  Following the decision in Preston that is fatal to her claim.  It must fail.  The strike out order was properly made.

12.	Faced with this proposition Mrs Jones has it seems to us, no answer.  She has referred to the dispute she now has with Unison as to the failure to present this claim within time.  As we sought to explain that is not a matter with which we can or should deal.  Nor are we persuaded that the approach contained in Mummery LJ’s dictum in Bache contravenes the right to a fair trial now enshrined in the Human Rights Act, which incorporates the European Convention on Human Rights and in particular Article 6.  In these circumstances we shall dismiss this appeal.