Appeal No.UKEAT/0303/05/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
On 8 December 2005

Before
HIS HONOUR JUDGE MCMULLEN QC
(SITTING ALONE)

MS S M DEIGHTON	APPELLANT

(1)	SECRETARY OF STATE FOR EDUCATION & EMPLOYMENT
(2)	HENLEY COLLEGE 	RESPONDENTS

Transcript of Proceedings
 
JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS S M DEIGHTON
(The Appellant in Person)
	
For the First Respondent

For the Second Respondent	No appearance or representation by or on behalf of the First Respondent

MS B RICHARDSON
(Representative)

SUMMARY

Equal Pay Act: Article 141 

By consent.  

Adjourned.  Preston case pending legal representation.  

HIS HONOUR JUDGE McMULLEN QC

1.	An application has been made at the start of today’s hearing by Mr Harper, who is the Claimant’s (Ms Deighton) partner and has some legal background and has made some submissions to me along the lines of seeking an adjournment.  Ms Richardson is here from the College and I have taken the opportunity to canvas a number of thoughts with them.  

2.	When I first received these papers (since I am the designated judge for dealing with part-time pension cases) it was my provisional view in February 2005 that since the Claimant contended that her case had not been heard by the Employment Tribunal and there was no judge refusing to hear it, there was no jurisdiction for the EAT.  That remains my provisional view, notwithstanding the further correspondence that there have been two regions of the Employment Tribunal and the case manager at the EAT.  

3.	At an earlier stage, Mr Damian McCarthy of Counsel appeared and it was Ms Deighton’s intention to instruct him, he having been there under the aegis of ELAAS, to attend today, but he has other professional commitments.  It is not practicable or cost-effective for other Counsel to be instructed.  Neither the Secretary of State nor the College objects to the adjournment.  Nevertheless, the Deputy Registrar decided that the case would stay in the list.  I can well see her thinking, because this case relates to events that occurred between 1976 and 1983 and the sooner it is disposed of, the better.  

4.	Ms Deighton retired in August last year and she wants some answers to her case.  The outcome, which I understand Mr McCarthy will be seeking, is for hearing before the Employment Tribunal.  We are concerned with how that is to occur if the appeal is successful.  The confusion in this case is because the Claimant, in common with thousands of other part-time workers in the public and private sector, launched proceedings in what became known as the Preston litigation (see my judgment Preston v Wolverhampton NHS Trust No.3 [2004] ICR 993) and eventually, there came a time when her individual circumstances were to be considered.  

5.	There were two claims presented on 29 December 1994.  They are signed by Ms Deighton on 21 December 1994 and accompanying them is a standard form prepared by her trade union indicating some specific insertions to deal with her case.  Both these claims relate to part-time working between 1987 and 1993 and 1993 to date, which I take it to be the date of presentation of the claim.  

6.	Ms Deighton now abandons both of those and they have been dismissed, for she acknowledges that she was in full-time employment with the College and was eligible for, and did join, the pension scheme from 1983 onwards and thus, in a sense, she was claiming relief as a part-time worker, but she was not the standard case, for she was already within the scheme.  

7.	However, and it is clear that, time and again in the correspondence which she has sedulously presented to the Employment Tribunal with great care, [she] asserted that she filled in two forms.  These are the forms.  However, the real complaint in this case relates to a form which I shall describe as the claim form for period 1.  This is dated by Ms Deighton and signed by her on 20 December 1994, a day earlier than the two other ones.  It has never been seen at the Employment Tribunal.  No judgment has been given upon this case.  It is true to say that the judgment given in this case might appear to be descending into the very issue raised by the claim for period 1.  But if it was, it seems to me (without having heard argument from either side) that the issue was not properly before the Chairman and therefore he had no jurisdiction to make a judgment upon it.  

8.	The misconception appears to have been shared by the College as well, for it too has entered into the dispute about whether the Claimant was engaged in a stable employment relationship and whether a radical change occurred when she became a part-time associate lecturer in 1981 or a full-time lecturer in 1983.  In 1981 she was eligible for the pension scheme but chose not to join it.  So, that appeared to be the focus for the discussion; but the way in which it was presented could not have been properly before the Employment Tribunal as it appears to me at the moment, for there was no claim to that effect.  

9.	I pointed out to Ms Richardson, who is here for the College, it is not strictly necessary for a claim by a part-time worker for access to the pension scheme to go via a Tribunal, for it is within the hands of the relevant employer and the Secretary of State to allow such access on, of course, the usual terms that the teacher concerned would pay her part of the contributions for the relevant time.  My own thinking, therefore, before this case opened today, was that I would have no jurisdiction because there is no issue properly arising out of a judgment of the Employment Tribunal on a claim presented to it.  I will, however, adjourn this case because it is important that the issue be resolved properly.  I am happy to adjourn it on to the papers and it will be for Mr McCarthy to decide if he can present his argument on paper without coming back here.  Provided all parties agree, that will occur and there will be no need for a further attendance and I will decide the matter on the papers.  

10.	In the meantime, two things might occur.  The College and the Secretary of State might decide that the Claimant, on the merits, should be admitted to the scheme and/or the Claimant might submit a claim with an application for it to be heard out of time and an explanation such as was being given to me this morning, and appears to have formed part of the early correspondence, so that a new claim which, I dare say, must meet the new provisions relating to the claim forms may be presented with such an application and it will then be dealt with by the Employment Tribunal.  I cannot advise Ms Deighton about that, but no doubt Mr McCarthy can.

11.	So, since all parties agree that this case should be adjourned - and the addition of time will be little compared with the time-scale already past in this case, and because it opens up the possibility that I have foreshadowed above - there will be an adjournment.  This case will be set up for a date in January to return to me on the papers, unless any party objects within seven days from today.  

12.	For the avoidance of doubt, now that Ms Deighton has seen the letter of 15 September 1981, she recognises that her claim will only be in respect of the period 1976 to 1981.