Appeal Nos. UKEAT/0745/02/ILB
		UKEAT/0746/02/ILB

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 September 2004
Judgment delivered on 21 October 2004

Before
HIS HONOUR JUDGE MCMULLEN QC
(SITTING ALONE)

UKEAT/0745/02
MS J M CLARKE 	APPELLANT

(1) LONDON BOROUGH OF HARROW
(2) SECRETARY OF STATE FOR EDUCATION AND EMPLOYMENT
(3) LPFA	RESPONDENTS

UKEAT/0746/02

MS J M CLARKE 	APPELLANT

(1) LONDON BOROUGH OF NEWHAM
(2) SECRETARY OF STATE FOR EDUCATION AND EMPLOYMENT	
(3) LPFA		               RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

UKEAT/0745/02/ILB & UKEAT/0746/02/ILB

For the Appellant

	

THE APPELLANT IN PERSON	
For the Respondents	MR BEN PATTEN
(of Counsel)
Instructed by:
London Borough of Harrow
Civic Centre
Station Road
Harrow 
Middlesex HA1 2XF

London Borough of Newham
Legal Services
Newham Town Hall
East Ham
London E6 2RP

MR KEVIN O’REILLY
Solicitor
The Treasury Solicitor
(Employment Team)
Queen Anne’s Chambers
28 Broadway
London SW1H 9JS

London Pensions Fund Authority
Dexter House
2 Royal Mint Court
London EC3N 4LP

(No appearance)

SUMMARY

A woman claiming breach of the equal access to pension requirements under the Equal Pay Act 1970, who was forced to retire on grounds of ill-health, must bring her complaint within six months of the termination of her employment.  The fact that but for her ill-health she would have continued in employment, and that after cessation of employment she was in a receipt of a pension, does not change that requirement.  Section 2(4) is not incompatible with Article 141 of the EU Treaty.  

HIS HONOUR JUDGE McMULLEN QC

1	This case concerns the time limit for the presentation of a claim by a teacher for breach of the equal access requirements in an occupational pension scheme and is directly affected by the long running litigation, most recently summarised in my judgment in Preston-v-Wolverhampton Healthcare NHS Trust (No 3) [2004] ICR 993.  The short point is whether Mrs Clarke, who retired from teaching in 1992 and presented her claim on 19 December 1994, should have had it struck out, as being outside the six month time limit set by the Equal Pay Act 1970, section 2(4).  The short answer is: yes.  

Introduction
2	Mrs Clarke’s case has been the subject of a voluminous amount of documentation and a number of hearings.  There is less to this case than meets the eye.  If a deeper insight is required, my judgment, given at a meeting for directions on 18 February 2003, the judgment of His Honour Judge Ryland at Central London County Court on 16 November 2000, in Mrs Clarke’s claim against the Secretary of State, and my judgment in Preston (No 3) give the full background.  

3	At the outset, I make clear my response to three points made repeatedly by Mrs Clarke. First, in all of the written and oral dealings I have had in this case, I have paid careful attention to the medical report of Dr Atchison of 14 May 2002, attached to the Notices of Appeal.  For that reason, I have conducted the oral proceedings making all reasonable adjustments requested by Mrs Clarke and have offered some of my own.  Secondly, never far from my mind is the fact that Mrs Clarke is at least, in this latest hearing, a litigant in person who faces what appears to her to be a battery of experienced lawyers instructed by Local and Central Government respondents.  The case management measures I have taken include giving equal time, on the one hand to the Applicant and on the other to the aggregate of the Respondents.  I acknowledge that at one stage the Applicant was represented by Counsel, but, with one exception, his submissions are no longer relied on by Mrs Clarke.  Thirdly, a number of Mrs Clarke’s submissions were prefaced by the words “Without Prejudice”.  What I understand her to mean by that is that, because she is not a lawyer, she should not be tripped up by any technical inaccuracy in language which might constitute an admission which it was not her considered intention to make.  During the hearing I summarised these three matters as “Mrs Clarke’s difficulties,” which my training and experience in this jurisdiction have enabled me to set aside.  At the first day of the hearing Mrs Clarke was represented by Counsel who applied for an adjournment. This was granted and Mrs Clarke was ordered to pay costs.  When we resumed without her Counsel, Mrs Clarke was accompanied by an experienced volunteer from the RCJ support unit, who has my thanks.

4	During the hearing Mrs Clarke complained that she had not had a bundle prepared for her by the EAT case manager, and that unfairly it had been sent to the other parties in order to undermine her. I have investigated this, as I said I would. I am quite certain the bundle was prepared to assist Mrs Clarke, there would be no point in then not sending it to her, it was sent to her and other parties at the same time, it contained no material which she had not previously seen and she was not at a disadvantage at the hearing.

The facts
5	I set out the background to this case in my interim judgment. In summary, Mrs Clarke was employed part-time or full-time as a teacher or lecturer from 1971 to 1992 in the public sector, apart from a short period when she was at university.  As a part-timer, she was excluded from the Teacher’s Superannuation Scheme (“TSS”).  She was forced to retire on grounds of ill-health in June 1992, following a brain aneurysm.  The circumstances of this kind of case are summarised in general terms by Mummery P in Preston No 1 [1996] IRLR 484 paragraphs 1 to 6.  She, like 60,000 other, mainly women, part-time workers were alerted to a possible breach of their rights under Article 141, as it now is, of the European Union Treaty, following the judgment of the European Court in Vroege and Fisscher [1994] IRLR 651 and 662.  She submitted Originating Applications against two of her former employers, Harrow and Newham.  She also worked for ILEA and Powys.  She made no claims against them.  

6	Mrs Clarke’s last period of employment ended in June 1992, although it is possible to regard her, for certain purposes, as arguably in employment until March 1993.  She was last employed by Harrow on 31 May 1984.  She was last employed by Newham in June 1982.  They are Respondents to separate Originating Applications, presented by Mrs Clarke.  At some stage, shortly thereafter, the Employment Tribunal joined the Secretary of State, presumably under Rule 19.  I gave directions on the Applicant’s application, having heard from the LPFA, which is the residuary body for claims against ILEA, for the LPFA to be joined at the EAT, pursuant to EAT Rule 18.  

7	On 17 May 2002, the Applicant’s complaints were struck out under Rule 15(2)(c) on the ground that they were brought more than six months after the end of her respective employments.  The claims were struck out as having no reasonable prospects of success and that it was misconceived to pursue them, as described by Regulation 1(2).  Mrs Clarke made applications for review in each case, and in each case the Chairman on the papers, exercising her power under Rule 13(5) refused to review her Decision, for Extended Reasons, registered on 24 June 2002.  

The parties
8	It is clear that as her former employers, Newham and Harrow are properly constituted as Respondents to the proceedings.  The LPFA has not objected to being joined as a party, but maintains that its last known employment relationship with Mrs Clarke ended in June 1986 (see its letter 16 February 2004) and in any event no employment by ILEA could continue beyond ILEA’s abolition on 1 April 1990.  LPFA resisted Mrs Clarke’s appeals, sent written representations and did not wish to be represented at the hearing. It is to be noted that it quickly recognised in 1994 that it wished to treat her equitably.  

9	The Secretary of State contends that neither he nor LPFA should be a party to any claim relating to ILEA, and the EAT and the Employment Tribunal have no power to join him.  I have not been told why he was joined in the first place, but Mr Kevin O’Reilly of the Treasury Solicitor, on his behalf, has been extremely helpful in the conduct of these proceedings.  He did not, until the hearing, seek in clear terms to be excluded from the ILEA claim.  I note that in the Preston series of litigation the Secretary of State was a party, and although the Secretary of State for the Environment contended that he should not be a party, the Secretary of State for Education did not join him in that application: see Preston No 1 [1996] IRLR 484 paragraph 32.  The Secretary of State is still a party in the latest, possibly last, round of Preston: Powerhouse Retail Ltd & Ors v Burroughs & Ors [2004] EWCA Civ 1281. As a matter of fact, the Secretary of State is responsible for the TSS.  Mr O’Reilly contends that since this is a claim under the Equal Pay Act, and under Article 141, it has to be constituted as a claim by an employee against her employer.  No direct remedy can be sought against the Secretary of State since he is not Mrs Clarke’s employer, although a declaration can be made affecting him.  The declaration would be that there is a right to membership, despite the rules of the scheme which he administers. Joinder to the Employment Tribunal proceedings is permitted only pursuant to Rule 19(1) which provides as follows:
“A tribunal may at any time, on the application of any person made by notice to the Secretary of State or of its own motion, direct any person against whom any relief is sought to be joined as a party, and give such consequential directions as it considers necessary.”

10	Mrs Clarke’s colourfully expressed position is that she cannot see what Harrow and Newham are doing in the proceedings; her claim is against the Secretary of State, since she was, for periods of her working life, excluded from the TSS.  She insisted forcefully that her claim was only against the Secretary of State.  Of course, Newham and Harrow are in the proceedings because Mrs Clarke presented Originating Applications against them and Notices of Appeal against them.  In my judgment, the Secretary of State is properly a party to those proceedings.  The point was not taken at the Employment Tribunal when he was joined by it to those proceedings.  It was made at a late stage in the hearing before me, as I now understand it following comments on the draft of this judgment, in respect of the ILEA claim only.  I see force in the argument that a remedy is not claimed by virtue of an employment relationship against the Secretary of State, but I have been assured that the Secretary of State was a party to, and represented in, all stages of the Preston litigation, including recently before me, because in every case there was an employer who was sued for equal pay in respect of a relevant pension scheme.  I was not asked to rule on it as a preliminary point, and so the Secretary of State has played a full part in my hearing.  It would be wrong at this stage to disjoin him from the Newham and Harrow claims, but in any event this decision is academic.  

11	As for the LPFA, as will become clear, a decision in respect of it too is academic.  It has not made an application to me to vary the Order I made to join it as a party, but if it did, I would have acceded to it, for the simple reason that no Originating Application was presented by Mrs Clarke citing it.  Mrs Clarke’s present position is that her former employers, Newham and Harrow, should not be present at the hearing.  Consistent with that, nor should the LPFA representing her former employer ILEA.  Since Mrs Clarke originally asked for LPFA to be joined, but now seeks no remedy against it, it would seem logical that it should be disjoined, and the Secretary of State must be disjoined from that inchoate claim since no declaration can be made in respect of the TSS for the time of employment by ILEA in the absence of an Originating Application against ILEA or LPFA. Anyway, LPFA cannot waive jurisdiction and thereby become a party, however conciliatory it has offered to be, and so the Secretary of State should not be a party to any claim against LPFA.

Non-issues
12	Mummery P in Preston No 1 gave a list of what he described as non-issues.  Because this case is diffuse and has a complicated procedural background, I too will set out the non-issues. 
a.	Mrs Clarke has, at various stages in this case, relied upon the Disability Discrimination Act 1995.  For reasons which I gave in my first judgment, this is misconceived; the Act postdated the relevant events in this case.  
b.	Mrs Clarke has also relied on the Sex Discrimination Act 1975.  By reason of section 8(5) that Act does not apply to breach of an equality cause included by virtue of the Equal Pay Act.
c.	The TUPE Regulations have no relevance.  Mrs Clarke included it in her submissions to me “as a quickie”.  I can just as quickly dispose of it.  
d.	If Mrs Clarke is right that the Equal Pay Act section 2(4) on limitation was amended with effect from 19 July 2003 by the insertion of section 2ZA and section 11(2A), in order to give effect to pre-existing obligations under Article 141, she would still not meet the conditions in those provisions.  She expressly disavowed the oral and written arguments made by Counsel on her behalf that she was “under a disability” i.e. as being of unsound mind, under the Limitation Act 1980.  In any event, having heard representations from the parties, I ruled on the papers that Mrs Clarke may not rely upon any disability she had as a reason for failing to present her Originating Application within six months of the termination of her employment; see the Order of 20 August 2004.  
e.	It was at one stage contended, on behalf of the Secretary of State, that the Applicant was precluded from raising issues in this appeal by reason of the judgment of Judge Ryland, which I ordered should be considered by any judge dealing with Mrs Clarke’s proceedings.  Mr O’Reilly abandoned that argument at the hearing.  

The submissions
13	Mrs Clarke will no doubt be dissatisfied if I summarise her submissions in the following two simple propositions.  It does appear to me, however, that this is the correct analysis of her case.  
a.	First, she contends that since her employment ended, at least on her case, in March 1993, she would have continued in employment but for her illness.  That is a straightforward admission that her employment ceased more than six months before the presentation of the Originating Applications.  The gap can be bridged if the hypothesis is good in law that she is to be treated as being in employment because, but for her illness, she would still have been employed.  
b.	Secondly, she contends that on her retirement, she received pension payments and was thus a member of the TSS, put simply, she was in a pension relationship with the TSS and this should be treated as an employment relationship.  

14	Mrs Clarke has strenuously argued that since there was no term in the contract of employment with Harrow or Newham, relating to membership of the TSS, the claim is against the Secretary of State.  

15	On behalf of Newham and Harrow, Mr Ben Patten of counsel argues that section 2(4) has been definitively determined to be consistent with EU obligations.  A claim must be presented within six months of the termination of employment.  There is no discretion to extend.  Employment with Newham and Harrow ended respectively in 1982 and 1984.  

16	The claim under the Equal Pay Act and under Article 141 is by way of a contract of employment and not any other relationship such as a pension relationship.  The House of Lords decided that a stable employment relationship meant just that, and there was no reason to extend it to include a pension relationship.  A stable employment relationship cannot extend, as here, over four employers.  

17	Mrs Clarke argues that the medical evidence in 1992 indicated that it may take three years before she recovered from the condition which she then had.  
Conclusions
18	Strictly speaking, Mrs Clarke’s two points are made for the first time at the EAT.   Mrs Clarke’s Counsel, who was instructed at this hearing before it was adjourned and has not returned, cited the judgment in Divine-Bortey -v – Brent LBC  [1998] ICR 886, in which the Court of Appeal held that the jurisprudence of the EAT plainly indicates that such new points may not be taken: see page 895E per Simon Brown LJ.  The point was taken by Newham’s Counsel in his written argument and objection to the disability point being raised.  Since I am anxious to deal with all of Mrs Clarke’s points on the merits, and since there has never been an oral hearing or a review hearing of Mrs Clarke’s case, the matters being dealt with on paper, I have allowed the argument to develop.  If I were asked to decide this point I would have taken the technical approach which would be to refuse Mrs Clarke permission to argue these points.  

19	I observe that in the 10 years of the Preston litigation, ending before me in 2003, and in the Court of Appeal in Powerhouse Retail Ltd & Ors v Burroughs & Ors [2004] EWCA Civ 1281 on 7 October 2004, these points were not taken by any of the leading and junior Counsel instructed in that case, or in other Preston-related cases which have come before me.  I have no doubt that among the 60,000 cases, and probably among the 22 test cases, there were examples of employees retired on ill-health grounds before the judgments of the European Court in Vroege and Fisscher.  The test cases were chosen jointly and presented by six or more distinguished teams of lawyers and union representatives, designed to illustrate the full range of circumstances: see my judgment in Preston No 3 at paragraph 4.  If Mrs Clarke’s arguments were good ones, it would indeed be surprising that no one had used them in that litigation.  

20	In my judgment, Mr Patten and Mr O’Reilly are correct.  Mrs Clarke’s employment with Newham and Harrow had ceased on any view in the 1980s.  She was not then in any way disabled; she did not make claims against them until 1994.  This is more than six months out of time and the Equal Pay Act contains no discretionary power to extend.  

21	A series of short term employment contracts can be bolted together to form a stable employment relationship but, as I decided in Preston No 3,, the existence of a full-time contract terminates such series and Mrs Clarke was, immediately before her retirement, employed on a full-time contract with Powys.  In any event, the stable employment relationship must be within the one employer.  Mrs Clarke’s claim to have been in a stable employment relationship to which could be added the period following the termination of all her employments, must fail on every aspect of the test required by the European Court.  See my analysis in Preston No 3 at paragraphs 115, 116 and 117 and my upholding of the “same employment” test in paragraph 119, as requiring employment by the same employer.  

22	I reject the contention that employment should be construed as including a pension relationship i.e. the relationship between a former employee in a pension scheme administered by trustees, and the former employer.  It is a contradiction in terms to describe a person who has retired from employment as being in employment.  The fact that there may be employers’ and employees’ contributions into a pension scheme, pursuant, for example, to paragraphs G5 and G6 of the TSS Scheme is irrelevant.  There is no breach of the principle in Coloroll Pension Trustees Ltd -v- Russell [1995] ICR 179 and Fisscher [1995] ICR 635, which allow for claims of sex discrimination to be made against administrators of occupational pension schemes, where contractual pension terms are not in the contract of employment. Since the Equal Pay Act deals with claims in contract against employers, an Employment Tribunal does not have jurisdiction under the Equal Pay Act prior to its modification in 1995 to hear claims which are not against employers. If the claim could properly be made under Article 141, it would still be subject to the domestic rules on limitation, held not to be inconsistent with effective EU remedies.  

23	For these reasons I will dismiss both of the appeals.  I appreciate that Mrs Clarke will feel gravely disappointed that her long-running complaints, made in 1994 and struck out in 2002, have not been restored.  The answer to Mrs Clarke’s case is given plainly by the Preston litigation, conducted in part by representatives of her trade union.  For the purposes of this appeal against a strike-out, I have considered Mrs Clarke’s case at face value on the material she has put in front of me, but I conclude that the Chairman was right to strike out her claims as misconceived.  I would like to thank her for the considerable industry which she has displayed in advancing these arguments in difficult circumstances for her.