England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		28th November 2003

1. LORD JUSTICE PILL: These are applications for permission to appeal. I have identified, with the applicant's help, the decisions against which she seeks to appeal. I deal with them in date order.
2. The first is at page A12 of the bundle. On that occasion His Honour Judge McMullen QC gave a direction that by no later than 4.00pm on 14th March the solicitors to the respondents in this case, Rhône-Poulenc Chemicals Ltd, lodge with the EAT and serve on the applicant a copy of the applicant's memorandum dated 10th October 1997.
3. The second order appears at A14 of the bundle and is dated 17th March 2003. Upon the application of the respondent for an extension of time in which to lodge and serve on the applicant the memorandum dated 10th October 1977, it is ordered that the application be allowed and leave be granted to lodge the memorandum no later than 4.00pm on 18th October 2003.
4. I interpose that the applicant's complaint about the earlier order is that the date of the memorandum was wrong. That was due to administrative error. I accept that the memorandum she was seeking was dated 10th October 1977. However, no mischief follows from that because it is clear from the order of 17th March 2003 that the correct date was in the mind of Judge McMullen and was known to the respondents.
5. The third order appears at page 22 of the bundle. On that occasion the Employment Appeal Tribunal, Judge McMullen again presiding, considered the appeal which the applicant had made against a decision of an Employment Tribunal sitting in Manchester and promulgated on 15th June 1995. The appeal was dismissed.
6. The fourth order appealed against appears at page 26 of the bundle. That is a refusal by Judge McMullen to review the decision which had earlier been made. The judge stated that the application for a review be refused:

"... on the grounds that the point of law remaining from The Honourable Mr Justice Morison's (P) Judgment was resolved by the House of Lords in Preston v Wolverhampton Health Authority & Others [1997] IRLR 233."

It was further ordered that any application for leave to appeal should be made direct to the Court of Appeal within 14 days of the order being sent to the parties. The application to this court is made on that basis, the order bearing the stamp date of the Employment Appeal Tribunal of 30th May.

7. Thus, apart from the orders in relation to the memorandum, this is in substance an application for permission to appeal against the decision of the Employment Appeal Tribunal dismissing Mrs Amica's appeal against the decision of the Employment Tribunal held at Manchester on 3rd May 1995. I should mention that it is clear from the bundle that there had been earlier proceedings, but the relevance of those has not been explained to me and indeed it appears to me they cannot be relevant to the application which is now brought.
8. The applicant was employed by the respondents. Her claim was brought, as appears from paragraph 1 of the extended reasons:

"... under the Wages Act 1986, the Equal Pay Act 1970 and Article 119 of the Treaty of Rome."

9. The respondents took the point that the claims were brought out of time and:

"The claims arise in all cases out of the circumstances of Miss Amica's employment with the respondent Rhone-Poulenc Chemicals Ltd, which employment it has been found by a previous Tribunal in Manchester in November 1994 terminated on 31 December 1993."

10. The Employment Tribunal considered in detail the arguments on the question of the applications being out of time. They record three reasons which the applicant gave.
11. Before referring to those, I should mention the 1997 memorandum which was the subject of the orders in March 2003, to which I have referred. Mrs Amica's case is that she had an equal pay claim. Moreover she had a memorandum in which officers of the company had accepted her claim that she was doing equal work and had appended their signatures to a document to that effect. She claims that when her claim was presented to the employers, the memorandum was taken away for copying and was never returned to her. That was a factor which led to the delay: the continuing refusal of the respondents to disclose that memorandum. The applicant also states that she was the victim of harassment. Moreover, she was suffering from ill health and has used the expression malicious damage.
12. These points were clearly understood by the Employment Tribunal. They refer in summarising the applicant's case to the document which the applicant had claimed would corroborate her own evidence. They refer to the atmosphere at the workplace as described by the applicant, and her submission that she feared repercussions if she brought a claim. She refers also to unfavourable advice which she had received from her union and their solicitors.
13. The Tribunal carefully considered these points and concluded, at paragraph 9, having referred to the authorities:

"A reasonable time limit it would seem to me to be precisely that which Parliament imposed under the Equal Pay Act 1970, and for the same reason that the claim under that Act should fail so too must the claim under Article 119 fail."

That is Article 119 of the Treaty of Rome, which provides that each member state shall maintain the principle that men and women should receive equal pay for equal work:

"Accordingly the Article 119 and the Equal Pay Act claims are out of time and that is absolute. The Wages Act claim is out of time and the applicant has failed to demonstrate that it is not reasonably practicable for it to be brought in time and it is dismissed."

14. Those are findings which the Employment Tribunal as the fact-finding tribunal were, in my judgment, entitled to make. However, though the documentation is not clear, it appears that on the Community law aspect of the claim Morison J did at a later stage keep open the possibility of a claim. It was for that reason that it was some time before that point came before the Employment Appeal Tribunal.
15. When dismissing the appeal, Judge McMullen did refer to the decision in Preston. That was a case which was referred to the European Court of Justice. Following a reference back from that court, the House of Lords decided that the relevant provisions of domestic law did not infringe Article 119 of the Treaty of Rome. The matter having, it appears, been held over on the basis that there was a reference to the European Court of Justice, that reference not having produced a result favourable to the applicant, Judge McMullen dismissed the appeal.
16. The applicant makes the further point that a decision made at the time of Preston, 2001, cannot be relevant to her position in 1997. I am unable to accept that submission. The decision of the Employment Tribunal in 1995 has in effect been upheld by the subsequent case, and the European case and Preston can only have been relevant if, when it was decided, it had demonstrated that the reasoning of the Employment Tribunal was unsound.
17. I see no arguable basis upon which an appeal to this court can proceed. If the dismissal of the appeal was correct, then complaint cannot justifiably be made of the refusal to review that dismissal. When dismissing the appeal, Judge McMullen did set out the relevant provisions and cited the case of Preston. He then stated, at paragraph 6:

"... I dismiss the Applicant's appeal from the Employment Tribunal. I have read carefully all of the documents the applicant has put in front of me, since she has indicated that she is unable to attend today."

The applicant has told me that her health did not permit her to appear before the EAT on 19th March 2003.

18. I see no arguable basis upon which this appeal can proceed.
19. That leaves the question of the memorandum and the March orders to which I have referred. Judge McMullen did deal with that point at paragraph 7 of his judgment:

"I have also heard from the Respondent by way of a letter dated 27.02.02 helpfully produced by Mr Jefcott, who attended today."

Mr Jefcott is the solicitor appearing for the respondent:

"A dispute of long-standing has also been resolved today, following my Order that the Respondent produces the Applicant's claim for equal pay, made in 1977. It was submitted by the Respondent that it was not relevant to today's proceedings and I agree."

20. The applicant claims that she has not seen that letter of 27th February. If that is so, it is unfortunate, but I have to say that upon the reasoning of the Employment Tribunal, which essentially is that for my consideration upon this application, I can see no relevance to a document as old as that one. I well understand the sense of grievance which the applicant feels as a result of her claim that a document has been withheld from her. But I can see no basis upon which the contents of that document, if it was available, could have influenced the decision of the Employment Tribunal in 1995, having regard to the points made and the basis upon which that decision was reached.
21. The judgment to which I have referred in effect nullifies the previous orders for disclosure. I see no basis upon which the decision of Judge McMullen on this point, as on the other points, is arguably reversible in this court.
22. For the reasons I have given, these applications for permission to appeal are refused.

ORDER: Applications for permission to appeal refused.

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