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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Cato v West Midlands Regional Health Authority [1993] UKEAT 434_92_0907 (9 July 1993)
URL: http://www.bailii.org/uk/cases/UKEAT/1993/434_92_0907.html
Cite as: [1993] UKEAT 434_92_0907, [1993] UKEAT 434_92_907
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At the Tribunal
THE HONOURABLE MR JUSTICE TUCKEY
MR D O GLADWIN
MR R H PHIPPS
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellant MR R DE MELLO
(OF COUNSEL)
Messrs Tyndallwoods &
Millichip
6th Floor
Albany House
Hurst Street
Birmingham B5 4BD
For the Respondents MR S HUNJAN
(OF COUNSEL)
Mrs K Levy
Arthur Thompson House
146 Hagley Road
Edgbaston
Birmingham B16 9PA
MR JUSTICE TUCKEY: Following a hearing on 5th, 6th and 7th May 1992 an Industrial Tribunal in Birmingham unanimously dismissed the Appellant, Miss Cato's claim for equal pay. For the purpose of the point we have to decide it is not necessary fully to recite what the Tribunal in their Decision characterised as the "most undistinguished history" of the matter.
However, the claim for equal pay was an equal value claim. It started by a complaint made on 16 August 1988. Under Schedule 2 to the 1985 Industrial Tribunal Rules the matter was referred to an expert in the shape of a Mr Read. Two years and ten months later Mr Read submitted a so called report in which he made it clear that he had not reached any conclusion and did not feel that he would ever be able to do so.
Upon receipt of that report the Chairman convened a Preliminary Hearing on 3 September 1991 at which both Miss Cato and the Respondents West Midlands Regional Health Authority attended. No submissions were apparently made to the Tribunal at that time but the Chairman in the course of the hearing made it clear that he did not think in the light of what had happened that the Tribunal could proceed to hear the matter under the provisions of Schedule 2 having regard to the fact that there was no Independent Expert's Report, that Miss Cato's employment had come to an end in February 1988 and that her job and that of the male comparator had long since disappeared. He considered that the way forward was for the Tribunal to consider the matter not under the Equal Pay Act and the regulations and rules made thereunder, but as a complaint under Article 119 of the Treaty of Rome and the Equal Pay Directive 75/117.
At that hearing it is clear that both parties accepted that this was an acceptable way forward. Neither party asked the Chairman to continue to attempt to deal with the matter under the Schedule 2 Rules, that is to say neither asked that the matter should be referred back to the Expert with a view to seeing whether he could reach a conclusion or that it should be referred to a further expert.
The Chairman's decision was recorded in a letter dated 4 September 1991 which was sent to the parties, we assume, that day or shortly thereafter. The letter says:
"At the Interlocutory hearing held on 3 September 1991 the chairman made the following orders:-
(1) In view of Mr Reed's inability to provide an Independent Experts Report, the applicant's complaint cannot proceed under the Equal Pay Act as amended by the Equal Pay (Amendment) Regulations 1983. The complaint will be heard as one under Article 119 Treaty of Rome and the Equal Pay Directive."
There are other matters referred to which we need not recite.
It is clear that what happened on 3 September 1991 was an Interlocutory Hearing and the Order made was an Interlocutory Order.
The Appeal to the Employment Appeal Tribunal was not instituted until 25 June 1992. Under Rule 3(1)(A) of the Employment Appeal Tribunal Rules 1980 the period in which an appeal to the Tribunal may be instituted is 42 days from the date on which Full Written Reasons for the Decision or Order of the Industrial Tribunal were sent to the Appellant.
By her appeal the Appellant challenges the procedure which the Chairman devised to enable the Tribunal to continue to hear her complaint. She wishes to argue that the Industrial Tribunal had no jurisdiction to take such a course having regard to the provisions of the relevant Rules and Regulations. Objection is taken on behalf of the Respondent to the Appellant's entitlement to raise that point. They argue that the appeal is in substance and form an appeal from the order of 3 September 1991 and as such is out of time. Mr De Mello on behalf of the Appellant argues that it is within time for reasons which we will come to in a moment. He realistically accepts that if we are against him, that is to say if we decide that it is out of time, it is not a case in which he would be able to persuade us to extend time.
Obviously the starting point is the EAT Rules to which we have already referred. Mr De Mello's submissions about Rule 3(1A) are that an Appellant has an option as to when he may appeal. That is to say he may either appeal 42 days from the date of the Order or 42 days from the date on which Full Written Reasons for the decision in the case are sent. Further, he submits that the words "Full Written Reasons" qualify not only the words "for the decision" but also the words "or order" and as the Chairman in the Full Reasons for the Decision in the case to which we have already referred refers again to what happened on 3 September, those are to be regarded as the Full Written Reasons for the Order and therefore the appeal is in time.
In order to examine the validity of those submissions it is first of all necessary to look at the 1985 Regulations to see what is meant by "decision", and what is meant by "order" in the context of those rules. "Decision" is defined as follows:
"Decision in relation to a Tribunal includes an order other than an interlocutory order"
So it is quite clear in those rules that the rule-maker is distinguishing between a decision so called, an order and an interlocutory order. It is with this definition in mind that one comes to the second schedule which sets out the particular procedure to be followed where a Tribunal is considering an equal value claim as the Tribunal were in this case. We refer to those rules because Mr De Mello has taken points on them to substantiate the submissions which he made about the effect of rule 3(1A) of the EAT rules.
He points to rule 9 of the second schedule saying that there is a requirement that the decision should be recorded in a document signed by the Chairman, that reasons shall be given for the decision and that those reasons should be recorded in full form in a document signed by the Chairman. The submission is that on 3 September the Tribunal made a decision of the Tribunal but the requirements of rule 9 were not met until Full Reasons were given for the Tribunal's ultimate decision on 4 June 1992.
We do not accept that submission. It is clear, as we have already observed, that the 1985 Rules differentiate between an Interlocutory Order and other decisions or orders which might be made by an Industrial Tribunal. This was an Interlocutory Order and there were therefore no requirements to comply with the provisions of rule 9 of Schedule 2.
Where does that leave the submissions which are made on rule 3(1A)? In those rules there is no distinction drawn between a decision, an order and an interlocutory order. However, we cannot believe that it was intended by rule 3(1A) that the time for appealing an interlocutory order was in any way linked to the giving of Full Written Reasons since no such reasons are required for an interlocutory order.
We believe that the intention of Rule 3(1A) is that where a party wishes to appeal an interlocutory order which raises a point of law (and one is bound to say that cases will be rare) it must be appealed within 42 days of the time when the order is sent to the Appellant. In this case that was in September 1991 and therefore the appeal is out of time. The good sense of such a construction of the Rules is self-evident. If there is an interlocutory order which involves a point of law which may affect the future course of the proceedings it is incumbent on anyone who wishes to challenge it, to do so timeously so that the proceedings can continue in accordance with the law as the EAT finds it to be.
We therefore do not accept Mr De Mello's submissions that the appeal is in time and it must follow that the appeal should be dismissed.
We reach this conclusion with a degree of satisfaction since this is a matter which has been going on for many years. The point at issue on the appeal was not one which was taken before the Tribunal let alone the subject of a timeous appeal. The hearing before the Tribunal continued for a number of days. It would be extremely unfortunate if this appeal were to be allowed to proceed and were to succeed with the result that this matter would have to return yet again to an Industrial Tribunal to grapple with the almost impossible question as to whether, in a period between 1985 and 1988 the Appellant's work was of equal value to the male comparator in circumstances where as we have already said, the jobs have long since gone. The trail was pretty cold when the matter was being dealt with by the expert; it was even colder when the matter was heard by the Tribunal; by now it must now have disappeared.
The appeal is dismissed.