England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION APPEAL

		Royal Courts of Justice Strand London WC2 Monday, 21st May 2001

1. LORD JUSTICE SEDLEY: This is a renewed application made on behalf of Mrs Tomkinson, one of three unsuccessful appellants of a batch of over 30 before the Employment Appeal Tribunal. The remainder, all bar two, succeeded to the extent of having their cases remitted to the same Employment Tribunal for reconsideration essentially on the ground that the Employment Tribunal had wrongly held against them the difficulties of having a fair trial at a distance of many years without appreciating that there was effectively no defence on liability, so that there was nothing like the ambit of issues to be tried which there would ordinarily be.
2. Mrs Tomkinson was distinguished from these applicants on grounds which, for my part, I have not found it easy to discern and analyse. Putting it very shortly, in view of the course we propose to take, the Employment Appeal Tribunal appears to have understood the decision to be that although Mrs Tomkinson had, on the tribunal's findings, not known until a date "prior to late June 1996" that she had a case, she delayed from then until 30th August in presenting her IT1. Looking at page 81 of the Employment Tribunal's decision in relation to Mrs Tomkinson, we see for the first time today that the Employment Tribunal said this:

"Further the tribunal considers it likely that the applicant must have become aware of challenges to the respondent's position with regard to retirement when she returned to work for them. The tribunal is satisfied that the applicant was aware of the possibility of making a claim prior to late June 1996 and does not consider that the applicant acted promptly in presenting her complaint when she did."

3. When one goes back to the history one realises that the tribunal may not have been talking about a date of knowledge some time in June 1996 at all. The recital of facts (on page 39 of the decision) indicates that this date was taken from Mrs Tomkinson's evidence that it was on a visit to Leicester in late June 1996 that she was told by a neighbour of her son that the press had reported settlements of some similar cases of obligatory but unlawful early retirement of women by the respondents. However the reference by the Employment Tribunal to "when she returned to work for them" must be a reference to January 1988. This was when, according to paragraph 7 on page 39, Mrs Tomkinson returned to work following her original obligatory retirement at the age of 60 in 1986, but also following the litigation which had begun to demonstrate that such a differential retiring age amounted to unlawful sex discrimination at least in terms of European directives.
4. The two time lapses are as different as chalk and cheese; but it is not at the moment apparent which the tribunal was going on. The Employment Appeal Tribunal took the view that even the shorter of the two - that is June to August 1996 - was enough to found a tenable decision in the Employment Tribunal. Whether that is so may now critically depend upon the comparison with what happens in the other cases. Equally, the other cases when re-heard on remission may be affected, certainly in argument and possibly in outcome, by the extant decision in Mrs Tomkinson's case. On the one hand, there are considerations of equity as between one applicant and another; similar cases should be similarly treated. On the other hand, there is the principle that every case has to be decided upon its own facts. Those two principles are difficult enough to reconcile without the added complication of Mrs Tomkinson's particular case.
5. What we propose to do in these circumstances is to adjourn the application which Mr O'Brien makes today as a lay adviser, coming before this court with the court's permission as a lay advocate because he has had the conduct of these matters in the tribunal below. We will stand the matter over so that, first, the remitted hearings may go ahead unencumbered by Mrs Tomkinson's case, and secondly so that we may reconsider, if it becomes appropriate to do so, the grounds of appeal advanced on Mrs Tomkinson's behalf after and in the light of the decisions in the remitted cases. While this is a temporising measure to some extent, it seems to us it is the least risky course in a situation which it is not at all easy at the moment to interpret on the documents before us. Accordingly, I would take that course.
6. LORD JUSTICE DYSON: I agree.
Order: Application adjourned