Appeal No. UKEAT/0283/06/ZT
	 & UKEAT/0284/06/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 September 2006

Before
HIS HONOUR JUDGE MCMULLEN QC
(SITTING ALONE)

MS B CLAYTON	APPELLANT

(1) CITY OF BATH COLLEGE	RESPONDENTS
(2) SECRETARY OF STATE FOR EDUCATION

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR PETER LINSTEAD
(of Counsel)
Instructed by:
Messrs Rickerby Solicitors
Ellenborough House
Wellington Street
Cheltenham
Glos GL50 1YD	
For the First Respondent	MS REBECCA DENNIS
(of Counsel)
Instructed by:
Messrs Thring Townsend Solicitors
6 Drakes Meadow
Penny Lane
Swindon
Wilts. SN3 3LL	
For the Second Respondent	No appearance or representation on behalf of the Second Respondent	

SUMMARY
Equal Pay Act – Article 141
Employment Tribunal Chairman had erred in striking out the Claimant’s case by applying Preston [No 3] [2004] ICR 993 EAT as this was not a case of a series of short term contracts. She also erred on the review in finding against the Claimant on two matters which were not in the original Judgment nor raised by the Claimant in the application. The Judgments were set aside and the case remitted to a three person Employment Tribunal for determination of both the limitation point and the merits at the same hearing.

HIS HONOUR JUDGE McMULLEN QC

1.	This case is about time limits in a claim for equal pay. Ostensibly it is a claim based upon the Preston [2004] ICR 993 EAT Judgments, but that may not be the correct approach. I will refer to the parties as the Claimant and the Respondent (City of Bath College). 

Introduction

2.	It is an appeal by the Claimant in those proceedings against a Judgment where the Chairman, Ms Christensen, on 30 January 2006 struck out the Claimant’s claim. On 3 March, following an application made by the Claimant for review, the Chairman refused to review it, considering that application itself had no reasonable prospect of success. There has never been a hearing, nor is there anything odd with that because cases following in the wake of Preston are often dealt with in this way. The Claimant is invited to show cause as to why the claim should not be struck out and, depending on what is said, the Chairman decides whether to conduct a PHR or a full hearing or to deal with it on the papers. For guidance on this see my Judgment on Thacker v Secretary of State for Education & Cambridge Regional College, UKEAT/0039/05. 

3.	The essential issue was to determine whether the Claimant was in time, having presented a claim form in 1995 and having retired from the position which she ultimately held in 1997.  A claim under the Equal Pay Act 1970 must usually be submitted within six months of the ending of the employment.  The Chairman had before her correspondence from the Claimant responding to the invitation to show cause and came to the conclusion that the case was regulated by Preston. Having heard argument this morning, I consider that there is an error in that approach. Ms Dennis, who appears on behalf of the Respondent, pursuant to an application she made for a Respondent’s answer to be submitted by her client in the last few days, has accepted that between 1970 and 1984 the Claimant had a stable employment relationship. That of course is a term specifically directed to the rescue of a series of short-term contracts, so as to allow them to be bolted together and limitation postponed. However, the Claimant is not a Preston candidate for she held a part-time position permanently. So she will fail on a number of the Preston grounds. She did not have a succession of contracts. They were not interspersed by periods of time without a contract and the contract was not short-term. Thereafter, it is said that on 1 September 1984 the Claimant became full-time and her employment position changed. I draw a distinction between those two periods applying Preston, and also Powerhouse [2006] ICR 646. In my Judgment the material before the Chairman disclosed a simple relationship of employment not corresponding to a Preston case up to 1984. 

4.	Having identified an error, I must decide what to do next. By consent I have taken both these appeals together. Strictly it is not necessary to decide the Appeal on the review since I have decided to allow the first Appeal. But I have looked at both of these Judgments together and they form a composite. I accept the force of the argument put by Mr Linstead on behalf of the Claimant, that matters in the review adverse to the Claimant were raised when they did not properly arise out of the material which was the subject of the review. Thus it was unfair to consider the situation in 1989 and to consider the corporate structure of the Respondent in 1992 when they were not part of the review. I would allow the appeal against the Review.

5.	The outcome cries out for a hearing. The way in which the case has developed this morning is unusual. I did allow an application by the Respondent to adduce additional evidence, although it was opposed. During the course of his submissions Mr Linstead indicated that his client had in her hands a substantial corpus of written material. In fairness, he had not seen it and he has explained to me the circumstances in which it arose. I have to say this is not a sensible way in which to conduct litigation. Whether or not papers should have been put before me would require a judgement by Counsel, having read the papers, and he was not in a position to have done so. A very brief overview of what these documents reveal is that, as Ms Dennis submits, they may well go to the heart of the dispute between the parties about what happened in 1984, when the Claimant went from part to full-time and which date marks the end of her claim to have been excluded, unequally, from access to the pension scheme. Until these documents emerged this morning I was also prepared to accept that there may well be evidence relevant to this, for I had heard that the employer at the time, Mr Pfaff, is available to give evidence, so long after the event. But now that the documents have emerged it seems to me that the need for a hearing is irresistible. 

6.	I am not in a position myself to deal with these papers, even if an application had been made for me to do so. Nor does it seem appropriate if an application were made for me to adjourn, consider the papers, and then receive written submissions, for I sense that this will only be decided justly if there is a hearing. So, in my judgment, the error which I have detected both in the substantive and the review Judgments indicate that the case must go back. I will allow both Appeals and I will direct that this case now be heard by a three-person Employment Tribunal and the parties can start preparing; 14 days from today: disclosure, and 28 days from today exchange of witness statements. Meanwhile the parties are to apply to the Employment Tribunal for further directions and a date.