United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 137_95_1509

Appeal No. EAT/137/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 15th September 1995

HIS HONOUR JUDGE J HICKS Q.C.

LORD GLADWIN OF CLEE CBE, JP

MR J A SCOULLER

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MR H S ARMSTRONG          APPELLANT

WEIGHT WATCHERS (UK) LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR H ARMSTRONG

(The Appellant in Person)


 


JUDGE HICKS Q.C.: We deal first with the case of Mr H.S. Armstrong. He was engaged as a self-employed person by the respondents Weight Watchers (UK) Ltd and was involved in delivering goods to leaders of Weight Watchers classes. His wife was employed by the respondents and was made redundant on 2nd June 1994. On the same day Mr Armstrong was told not to continue with his deliveries and he was never asked to resume them. He made an application to the Industrial Tribunal on the basis first of unfair dismissal - and that has gone because he was not an employed person - but secondly on the basis of sex discrimination.

The Chairman of the Industrial Tribunal found that the Industrial Tribunal had no jurisdiction to deal with the sex discrimination application because it was made outside the relevant time limit, three months.

In the course of dealing with that matter the Chairman clearly, by the way in which he expressed his reasons, took into account not only the date on which the cessation of Mr Armstrong's contract occurred but also the date on which relevant facts became available to Mr Armstrong, and it seems clear in the context that the Chairman was taking that matter into account both on the question of whether it was reasonably practicable for Mr Armstrong to bring his application within the time limit and also under the broader question of whether it was just and equitable in all the circumstances to extend the time, of which reasonable practicability would be a part.

Mr Armstrong's ground of appeal is that the crucial fact which the Chairman ought to have taken into account was that he, Mr Armstrong, did not know that his exclusion from this work had changed to being temporary to being permanent until he came to know that in November, and certainly by whatever other means he came to know he did come to know by a letter of 10th November 1994 that that was the case, because the last paragraph of that letter reads:

"... it is at Weight Watchers sole discretion who delivers the stock and we decided we did not want you to deliver any more."

He says that was the crucial fact which brought it too his mind that he had been excluded permanently, and that should have been taken into account, as we understand his argument, both on the question of whether it was reasonably practicable for him to have brought the application in time and also, more generally, on the whole question of whether it was just and equitable to extend the time.

As to that, the Chairman's relevant findings are in paragraphs 12 to 14 of the reasons which he gave and in those paragraphs he says:

"12 What prompted the applicant to make his sex discrimination claim was the realisation that Mrs Luke was in fact employed, not self employed. [Mrs Luke being the person who had taken over the functions that he was performing under his contract ] He assumed that she was self employed all the way through to November, and he then found out that she might not be self employed in doing the job that he had been doing before.

13 The mistake he made was one of law, in that he did not realise that he could bring a sex discrimination case as a self employed person.

14 All the facts were available to him from 2 June, the very day that his contract was ended, save one which was irrelevant. That is that Mrs Luke was employed and not self employed. it actually makes no difference whether she was employed or not. She was doing the job he had previously been doing."

And then, having dealt with the facts in that way, the Chairman referred to the statutory provision that: "a tribunal may nevertheless consider any such complaint which is out of time if in all the circumstances of the case it considers that it is just and equitable to do so." and dealt with that in this way:

"15 I decide that it is not just and equitable to extend the time. That is because Mr Armstrong was aware of all the relevant facts on 2 June, the very day his contract was ended. What he was not aware of was an irrelevant fact - that is the employment status of Susan Luke. It obviously weighed very much with Mr Armstrong and he considered it highly relevant. Why had he not been offered the job, if a job was going? Had be made enquiries at the time he would have known that he could indeed have made a complaint, whatever Mrs Luke's employment status.

16. Nothing therefore, in my judgment, turns on the discovery of the fact and that is why it is not just and equitable to extend the time. ..."

That, in our view is a clear finding of fact by the Chairman that what triggered off Mr Armstrong's belated application was the discovery that Mrs Luke was employed, and the realisation that as a matter of law, although an self employed person, he could if all the other relevant conditions were complied with bring a claim for sex discrimination. In our view, that is a finding of fact that was open to the Chairman and there is no appeal to us on questions of fact, so it is not open for us to find, even if we were minded to do so, that that was not the case and that what really operated on Mr Armstrong's mind was the point about temporary or permanent deprivation of the job, which he says the Chairman should have found to have been the relevant fact.

We therefore find no error of law in the Chairman's decision and for that reason we must reject Mr Armstrong's appeal.