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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> British Coal Corporation v Keeble & Ors [1995] UKEAT 413_94_0607 (6 July 1995)
URL: http://www.bailii.org/uk/cases/UKEAT/1995/413_94_0607.html
Cite as: [1995] UKEAT 413_94_607, [1995] UKEAT 413_94_0607
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- Rewe - Zentralfinanz v Landwirtschaftskammer fur das Saarland (op. cit) contemplates for the United Kingdom designation by Parliament of the `courts' to have jurisdiction over claims based on community law; and determination of such procedural conditions "that are intended to ensure the protection of rights which citizens have from the direct effect of Community law."
- In the event, for the claims based on Community law advanced by each of these applicants, the designated `court' is the Industrial Tribunal. It follows, as is conceded, that the procedural conditions as prima facie determined, are those referable to analogous claims in that forum, namely as prescribed by Section 76 Sex Discrimination Act 1975. Starting with the act complained of, there is a three month period within which a Tribunal may be presented with a complaint, subject to a discretion to consider a complaint presented out of time "if in all the circumstances of the case, it considers that it is just and equitable to do so."
- We interpose. The jurisdiction of the Industrial Tribunal is subject to various and varying limitation periods, all relatively short, all specifically defined by Statute. We perceive such procedural conditions to be directed to the ability of an Industrial Tribunal to provide both applicants and respondents with quick, clear cut, relatively inexpensive remedies. The contrast is with the comparable procedural conditions by which the common law courts proceed: much longer and less well defined limitation periods are prescribed as policed by sophisticated legislation, latterly the Limitation Act 1980, all as reflecting the much more extensive jurisdiction of the different, parallel court structure. Yet further, the finality of, for example Section 76(1) is alleviated (as is common throughout the jurisdiction of the Industrial Tribunal) by the discretion permitted by Section 76(5). As we respectfully perceive them to be, the procedural conditions relevant to analogous claims made pursuant to the Sex Discrimination Act 1975 are fair to both applicants and respondents, as individuals or as persons concerned for the proper functioning of Industrial Tribunals. We emphasise: without the present procedural conditions, Industrial Tribunals could not cope - it is not their function to adjudicate on long delayed claims, still less to adjudicate on sophisticated limitation issues. As to applicants, if the perceived sexual discrimination merits a complaint then that will be readily apparent and normally within three months; as to respondents, there is every advantage in responding in a timely fashion or not at all; and as to all parties, there is Section 76(5) to cope with meritorious exceptions.
- We have used the preceding paragraph to establish a premise for the proposition that, as a matter of principle, it must be difficult to demonstrate that the same procedural conditions put an application based on analogous Community law at a disadvantage, such that in practice it is impossible to prosecute it. It must be for the applicants to demonstrate the disadvantage that accrues to them from the procedural conditions culled from analogous domestic law; and to demonstrate what other and different conditions would restore procedural parity - without similarly disadvantaging BCC. We remind ourselves Community law and its attendant procedural conditions is not just for applicants.
- Turning to the arguments advanced to us with a view to discharging that burden, we first consider them, without benefit of authority; we shall then consider the latter. Thus, confronting Miss Gill's submissions free from authority, we cannot accept that they serve to satisfy us that the application of procedural conditions as laid down by Section 76 would put her clients applications at a disadvantage by reason of their reliance on Community law, that is, at such a disadvantage that it would be "impossible in practice to exercise the rights which the national courts are obliged to protect." Several points arise.
- Are we constrained by authority to take a different view as to the inception of the relevant time limit? Following the careful deployment of every relevant authority before us, we are satisfied that three call for careful consideration as being relevant to the identification and application of time limits: Emmott (op. cit.), Cannon v Barnsley M.B.C. [1992] ICR 698 and Rankin (op. cit.). Cannon has not yet been referred to in this judgment. It is a decision of this Tribunal concerning a complaint of discriminatory treatment with respect to a statutory redundancy payment, which complaint invoked Community law rights that were the subject of two Council Directives, that of Equal Treatment and that of Equal Pay. The act complained of was in August 1985 and the application to the Industrial Tribunal was on the 28th February 1990, that is, just over a month after these Directions were given domestic law effect by Section 16(2) Employment Act 1989. The relevant part of the headnote reads:-
- We interpose. Miss Gill understandably takes comfort from the approach of this Tribunal in Cannon, that is, its search for an inception to the relevant time limit and the finding of such long after the act complained of by reference to a date in legal history. For our part, the decision is of assistance in demonstrating the potential impact of Emmott upon decisions of this tribunal, but otherwise we distinguish as unpersuasive. Four points arise. First, the tribunal was not concerned as we are with applications based on directly apposite `free standing' law, that is, Article 119, but on inchoate rights acknowledged by Directive but as yet not made directly available by the Member State (the effective respondent) through domestic legislation. Arguably, therefore, in 1985 as at the act complained of there was legal uncertainty that was not present in 1989 if reliance could be placed on Article 119. That said, second, it is not easy to understand why Section 16(2) Employment Act 1989 which was not retrospective should supply legal certainty with respect to an act complained of in 1985. It seems surprising that a domestic law provision which denied the late Mrs Cannon relief should set time running against her in terms of Community Law relief. Third, we can find no mention in the judgment of this tribunal of the potential impact of S.76(5), that is, as making it just and equitable to consider the application notwithstanding a long expired time limit with its inception at the act complained of, given the inaction of the Member State (of which the respondents were an emanation) in the face of material Council Directives. Fourth, the foregoing comments may reflect the fact that in Cannon the respondent did not provide argument. In short, and with respect, we do not dissent from the result in Cannon, but we do not find the route to such as persuasive.
- What then of Rankin? We have to say that, with respect, the reasoning is not persuasive and it does not constrain us to take an approach that differs from that adumbrated without benefit of authority. There are several points of difficulty:-
- In summary, we are satisfied that in each instance the procedural conditions were as determined by Section 76: a three month time limit starting with the act complained of, but with a potential for the exercise of a discretion in favour of the applicant if in all the circumstances it is just and equitable to do so. The resultant impact on the appeal of BCC is as follows:-
- We add observations with respect to the discretion that is yet to be exercised. Such requires findings of fact which must be based on evidence. The task of the Tribunal may be illuminated by perusal of Section 33 Limitation Act 1980 wherein a check list is provided (specifically not exclusive) for the exercise of a not dissimilar discretion by common law courts which starts by inviting consideration of all the circumstances including the length of, and the reasons for the delay. Here is, we suggest, a prompt as to the crucial findings of fact upon which the discretion is exercised.
- We conclude by expressing our appreciation of the advocacy that has illuminated and assisted our task.
At the Tribunal
Judgment delivered 6 July 1995
THE HONOURABLE MR JUSTICE HOLLAND
DR D GRIEVES CBE
MRS T MARSLAND
JUDGMENT
Revised
APPEARANCES
For the Appellants MR NICHOLAS UNDERHILL (Queen's Counsel)
MR B NAPIER
(Of Counsel)
Messrs Nabarro Nathanson
City Plaza
2 Pinfold Street
Sheffield. S1 2GU
For the Respondents MS TESS GILL
(Of Counsel)
Brian Thompson & Partnrs
Arundel House
1 Furnival Square
Sheffield. S1 4QL
MR JUSTICE HOLLAND:
Introduction We are concerned with an appeal by British Coal Corporation ("BCC") from a decision of an Industrial Tribunal sitting at Sheffield, the full reasons for which appear by way of a decision in writing dated 8th March 1994. This Tribunal had had to consider a preliminary issue on the basis of agreed facts, namely as to whether it had jurisdiction to adjudicate on complaints made by four former employees of BCC. In the event its decision was that it had jurisdiction to hear claims of Mrs J. Keeble, Mrs B. Watkinson and Mrs M. Kilburn but no jurisdiction in the case of Mrs V. Mulligan. BCC contends that the decision favourable to the first three applicants was wrong in law; those three applicants seek to uphold the decision but Mrs Mulligan has not sought to take her application further.
Mrs Keeble
This lady was employed as a canteen assistant by BCC (such embracing, without objection, the National Coal Board as its predecessor) from 9th August 1971 to the 19th August 1989. On this latter date, when aged 59 years and 1 month she lost this employment by reason of redundancy. She accordingly received two redundancy payments: a payment calculated in accordance with the provisions of the Employment Protection (Consolidation) Act 1978 of £3000.80 ("the statutory payment") and an ex gratia payment made pursuant to the British Coal Redundancy Arrangements of £6,705.16 ("the voluntary payment"). It is common ground that but for her sex both payments would have been larger. As a woman she was then only 11 months short of her compulsory retirement age of 60 and that fact had to be taken into account in computing both payments, having regard with respect to the statutory payment to the relevant rules, and with respect to the voluntary payment to the relevant terms of BCC's scheme. A male employee in a similar position would have been 5 years and 11 months short of his compulsory retirement age of 65 and these rules and terms would have recognised that fact with different and larger payments. In the event Mrs Keeble's sex and age impacted upon the statutory payment so as to reduce it by £272.80 and upon the voluntary payment so as to reduce it by £16,501.24. Mrs Keeble seeks to recover these sums by way of a complaint to the Industrial Tribunal alleging sexual discrimination, which complaint was initiated by an originating application dated 24th July 1991. The Industrial Tribunal made no findings of fact specific to her delay in initiating proceedings.
Mrs B. Watkinson
This lady was in like employment from 5th June 1978 to the 26th August 1989. On this latter date, when aged 58 years and 6 months she too lost this employment by reason of redundancy. In the result she received two redundancy payments: a statutory payment of £2,402.55 and a voluntary payment of £1537.20. It is common ground that but for her sex the latter payment would have been larger. As a woman she was then 18 months short of her compulsory retirement age of 60 and that fact had to be taken into account in computing the voluntary payment having regard to the terms of BCC's scheme - not having reached 59, her age made no impact upon the statutory payment. The reduction in the voluntary payment thus required by the terms of the scheme came to £6,148.80 and it is this sum that she seeks to recover by way of a complaint alleging sexual discrimination, which complaint was initiated by a originating application dated 12th February 1992. The Industrial Tribunal made no findings of fact specific to her explaining the delay in making the complaint.
Mrs M.T. Kilburn
This lady was in like employment (albeit as a cleaner) from 30th March 1982 to 12th March 1988. On this latter date when aged 58 years and 10 months she lost this employment by reason of redundancy. She accordingly received two redundancy payments: a statutory payment of £493.56 and a voluntary payment of £8,472.50. As a woman she was then 14 months short of her compulsory retirement age of 60 and that fact had to be taken into account in computing the voluntary payment having regard to the terms of BCC's scheme - not having reached 59 her statutory payment was unaffected. The reduction to the voluntary payment amounted to £2778.00 and it is this sum that she seeks to recover by way of a complaint alleging "a breach of the Equal Pay Act 1990 and/or the Treaty of Rome Article 119 and Directive EC 75/117", which complaint was initiated by an originating application dated 26th March 1992. The Industrial Tribunal made no findings of fact specific to her explaining the delay in making the complaint. In the event her complaint was understandably taken by the Industrial Tribunal to be identical to that of Mrs Watkinson.
Domestic Law
(a) Statutory Payment
It is common ground that no claim can be made on behalf of Mrs Keeble for the shortfall of £272.80 that is based upon a domestic statute. The fact that the calculation was in accordance with the then prevailing provisions of the Employment Protection (Consolidation) Act 1978 necessarily provides a complete response in terms of domestic law. Further, whilst the provisions of Schedule 4 to that Act (which provided for different calculations according to sex) were revoked by Section 16(2) Employment Act 1989 such revocation took effect on the 16th January 1990, but without retrospective effect. That said, domestic law does provide Mrs Keeble with a procedural advantage which in the event has proved vital to this part of her claim in circumstances that will appear later in this judgment. Section 101 of the 1978 (1) Act provides:
"....., an employee shall not be entitled to a redundancy payment unless, before the end of the period of six months beginning with the relevant date - .....
b. the employee has made a claim for the payment by notice in writing given to the employer .....".
In the event on the 1st February 1990 (that is, within six months of the 19th August 1989) a letter was written on her behalf to BCC arguably claiming, inter alia, the shortfall on the statutory payment. In paragraph 39 of its Full Reasons the Industrial Tribunal found the question of fact as to whether by such letter a claim was made by Mrs Keeble so as to satisfy Section 101(1) in her favour - there neither is, nor could be an appeal against such finding. What follows? Miss Gill submits on behalf of Mrs Keeble that once a claim is made so as to satisfy Section 101(1) then there is no further time limit to satisfy and a complaint to an Industrial Tribunal relating to such redundancy payment can be brought without limit of time, at least as prescribed by statute. For this initially startling proposition she invokes the construction of the statute and a decision of this Tribunal, Price v Smithfield & Zwanenberg Group Ltd [1978] ICR 93 at page 96. We need not dwell further on this point: after reflection, Mr Underhill Q.C. for BCC found himself unable to demur so that by the end of argument before us there was no dispute but that so much of the complaint of the 24th July 1991 as related to the statutory payment was not out of time. To that extent BCC's appeal against the Industrial Tribunal's finding is not pursued.
b. Voluntary Payment
It is common ground between the parties that the remaining claims (all three of which relate to payments under the ex-gratia BCC scheme) fall to be considered in terms of domestic law by reference to Section 6 Sex Discrimination Act 1975 as in force at the relevant dates, that is, on and between the 12th March 1988 (Mrs Kilburn) and the 26th August 1989 (Mrs Watkinson):-
"(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her -
(a) in the way he affords her access ..... to any other benefit ....., or
(b) by ..... subjecting her to any other detriment
(4)Subsections 1(b) and 2 do not apply to provision in relation to death or retirements."
Before the Industrial Tribunal it was common ground between the parties that this subsection could not be invoked by any of the three claimants so that they did not have, concurrent with their redundancies, a domestic law remedy. Before us, without forewarning in the Notice of Appeal, Mr Underhill Q.C. (who had not appeared before the Industrial Tribunal) sought to argue that on a proper construction of this subsection these claimants did have a concurrent remedy by way of domestic law. Miss Gill objected to him thus raising a point of law not argued below, submitting additionally that in any event the construction he contended for was wrong. One and possibly two issues were thus raised for our adjudication. As to the first, we were referred to Hellyer Bros v McLeod [1987] ICR 526 on the basis of which Miss Gill was able to submit that the principle as endorsed by the Court of Appeal at page 564 was:-
"..... that if a point is not taken in the court of trial, it cannot be taken the appeal court unless that court is in possession of all the material necessary to enable it to dispose of the matter finally, without injustice to the other party, and without recourse to a further hearing below ..... that being a rule of practice this rule contains an element of discretion. There may well be cases in which justice demands that a different view be taken owing to the special circumstances of the case ....."
Miss Gill submitted that this Tribunal was not in possession of all the material necessary to enable it to dispose of the matter finally; that to allow the point to be taken would be unjust; and that there were no special circumstances. Mr Underhill submitted to the contrary. For our part, we unhesitatingly allow the point to be taken. As to this, we accept that if the point be successful then the matter would have to be remitted to the Industrial Tribunal for a decision as to whether to consider the claims pursuant to the 1975 Act notwithstanding that they were brought more than three months after the acts complained of (see Section 76), but, as will be apparent, remission is inevitable for other reasons, as to which see below. Further and more importantly we are asked to make rulings and give guidance as to the relationship between complaints based on domestic law and those based on community law and it is pointless to exclude from our ambit any material submission. Thus if a special circumstance has to be identified, that is it. We then turn to the issue as to the validity of the construction contended for by Mr Underhill Q.C. He submits that Section 6(4) is not apt to exclude a claim alleging discrimination in connection with a payment on redundancy, such not being a "provision in relation to death or retirement". In support of this submission he relies on passages in the judgment of this Tribunal in Garland v British Rail Engineering [1978] ICR 495 at 498F as subsequently approved by the House of Lords, [1982] ICR 420, viz:-
"What Section 6(4) is directed to are those arrangements made and all those things which have been done by the employers in order to make provision for retirement, such as provisions for pensions ..... What, as it seems to us, has to be looked for is whether what is being done is part and parcel of the employer's system of catering for retirement, or whether as here, the case is merely one where a privilege has existed during employment and has been allowed to continue after retirement".
Miss Gill's response invokes the judgment of this Tribunal in Roberts v Tate & Lyle [1983] ICR 521 at 528:
"We consider that the purpose of Section 6(4) is fairly apparent. Parliament, in enacting the Act of 1975, was seeking to eliminate all discrimination between men and women. However it was faced by a widespread and inherently discriminatory practice deeply embedded in the social organisation of the country, namely, the differential in retirements ages between men and women. This differential treatment was blatantly discriminatory. However, the effect of such discriminatory practice percolated throughout society. State pensions reflected the differential; the vast majority of occupational pension schemes reflected the differential; normal ages of retirement maintained the differential. Accordingly, unless all this was to be swept away, the Act had to exclude claims arising out of this inherently discriminatory practice. For this reason Section 6(4) appeared in the Act ...... It was necessary to exclude any complaint based on the existence of contractual terms dealing with retirement since such terms would necessarily be linked to the differential in the retirement ages ..... Accordingly it seems to us inescapable that the words `provision relating to' apply not only to the benefits receivable on retirement but to the terms of access to such benefits and the circumstances under which the benefit is payable. Moreover, the mischief aimed at by Section 6(4) requires that consequential provisions (linked directly or indirectly to the differential retirement age) have also to be excluded."
Submits Miss Gill, the discrimination complained of related not to the redundancy payments as such but to the differential in retirement age which in each instance decreed a discriminatory discount. Thus, she submits, Section 6(4) precludes relief by way of domestic law for each of the clients with respect to the discrimination alleged in connection with the voluntary payments. We unhesitatingly accept Miss Gill's submission on this issue: inescapably the discrimination alleged relates to retirement and its impact upon the calculation of redundancy payment. Thus, after this foray, this Tribunal too proceeds on the basis that, as with discrimination in relation to the statutory payment, discrimination in relation to the voluntary payments was not justifiable by reference to the concurrent domestic law.
Community Law
Article 119 of the Treaty of Rome specifies:-
"Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work .....".
Section 2(1) European Communities Act 1972 provides:-
"All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under (the Treaty of Rome) ....., as in accordance with (the Treaty of Rome) are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly ....."
In Shields v E. Coomes (Holdings) Ltd [1978] ICR 1159 at 1167. Lord Denning M.R. said:-
"It seems to me that when the Parliament of the United Kingdom sets up a tribunal to carry out its Treaty obligations the tribunal has jurisdiction to apply Community law and should apply it in the confident expectation that that is what Parliament intended. If such a tribunal should find any ambiguity in the statutes or any inconsistency with Community law then it should resolve it by giving primacy to Community law ..... I think that Community law applies only in the High Court, but also in the Industrial Tribunal and the Employment Appeal Tribunal. An appeal lies in all these cases to the Court of Appeal. So they should all apply the same law."
In these premises as to law, Miss Gill submits that all three applicants can demonstrate an inconsistency between each such provision of the domestic law as denied relief for the sexual discrimination that resulted in the reduction in the respective redundancy payments and Community law, that is, Article 119. She submits that the latter is accorded primacy and, on the basis of such she maintains the respective complaints. On behalf of BCC, Mr Underhill Q.C. concedes, that is, he concedes that all the complaints are well-founded by reference to Article 119. In the result, he concedes in totality Mrs Keeble's complaint that sexual discrimination caused her to suffer a reduction in her statutory payment in the sum of £272.80, given that such complaint is not out of time. However with respect to the remaining complaints, all of which relate to voluntary payments, he contends that such are out of time and that the Industrial Tribunal's decision to the contrary reflects a misdirection as to law.
Time Limits
By the end of argument before us, the parties through their legal advisers had substantially narrowed the issues. The following propositions were before us:
1. "..... in absence of Community rules on this subject, it is for the domestic legal system of each member state to designate the court having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of Community law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature ..... the right conferred by Community law must be exercised before the national courts in accordance with the conditions laid down by national rules. The position would be different only if the conditions and time limits made it impossible in practice to exercise the rights which the national courts are obliged to protect ..... in the present state of Community law there is nothing to prevent a citizen who contests before a national court a decision of a national authority on the ground that it is compatible with Community law from being confronted with the defence that limitation periods laid down by national law have expired it being understood that procedural conditions governing the action may not be less favourable than those relating to similar actions of a domestic nature" see Rewe - Zentralfinanz v Landwirtschaftskammer fur das Saarland [1976] ECR 1989 at 1997 et seq.
2. There are no time limits prescribed by domestic law as specifically referable to claims based upon Community law.
3. In order to identify the time limits applicable to a complaint based on community law, it is first necessary to identify the analogous that is, similar complaint based on domestic law. The time limit is that applicable to this latter complaint assuming that in the circumstances such time limit does not put the former complaint at a comparative disadvantage. It is to be observed in passing that the search for an analogous complaint sustainable by domestic law is in any event a necessary step. If a complaint can be pursued by virtue of domestic law as well as by virtue of community law then the domestic law remedy must be exhausted first as a matter of preference: Blaik v Post Office [1994] IRLR 280. Further, without an analogous domestic law remedy justiciable in the Industrial Tribunal, then a question inevitably arise as to the jurisdiction of the latter over the complaint founded on community law, given that the Industrial Tribunal can have no inherent jurisdiction, merely such as is conferred by the statutes that constitute the domestic law structure.
4. Turning to the complaint that sexual discrimination caused reduction in the voluntary payments, Miss Gill submits that the analogous domestic law remedy is that provided for by Sections 6 and 63 Sex Discrimination Act 1975 so that the time limit is prima facie that stipulated by Section 76(1) of that Act:
"An Industrial Tribunal shall not consider a complaint under section 63 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done".
That provision is alleviated by Section 76(5):
"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."
Thus far, Mr Underhill Q.C. agrees.
The Respondents' Case
It is at this point that agreement ceases. Miss Gill has no quarrel with a three month time limit open to extension if such is just and equitable in all the circumstances. What she does submit is that in each of the instant cases, her client's claim as based on community law would be treated less favourably than an analogous claim made under domestic law if the three month period were to start with the act complained of. Her argument proceeds as follows - it is convenient to refer directly to Mrs Keeble's claim.
A. In the case of Mrs Keeble, date of "the act complained of" was arguably the 27th August 1989, that is, the date on which BCC set out in writing the computation of the voluntary payment, which computation reflects admitted sexual discrimination.
B. As at that date there was an E.A.T. decision to the effect that a contractual redundancy payment which reflected sexual discrimination was unlawful by virtue of Article 119 so that a complaint could be sustained before an Industrial Tribunal: Hammersmith and Queen Charlottes Special Health Authority v Cato [1988] ICR 132. There was however no like authority with respect to a voluntary redundancy payment and indeed on the 4th October 1989 there was a further E.A.T. decision to the effect that a statutory redundancy payment was not "pay" within the meaning of Article 119: Secretary of State for Employment v Levy [1990] ICR 18. Pausing here, Miss Gill submits that as at the relevant date it was not reasonably clear as a matter of law that Mrs Keeble could sustain her complaint by invoking Article 119, that is, by invoking community law.
C. When did the law become reasonably clear? The earliest date conceded by Miss Gill is, say, June 1990 that is, when the decision of the E.C.J. in Barber v G.R.E. Group [1991] ICR 616 became known. That decision, actually promulgated on the 17th May 1990, was so far as material, "that a redundancy payment fell within the concept of `pay' in Article 119 of the Treaty even if it was not contractual but was either an ex gratia payment or a statutory payment that constituted a form of social security benefit .....", see the headnote at page 617. However Miss Gill would prefer a finding from us that the date was still later. To this end, she refers us to McKechnie v U.B.M. Building Supplies (Southern) Ltd ICR 710, the judgment in which was handed down on the 24th April 1991 by this Tribunal. In it, a submission that Article 119 did not confer a right enforceable as such was rejected. Further she refers to Cannon v Barnsley Metropolitan Borough Council [1992] ICR 698 (as to which see below) as showing that a further illumination of this area of law was forthcoming as late as the date of the judgment, 17th June 1992.
D. If then the law sustaining Mrs Keeble's claim did not become reasonably clear through the medium of decided cases until 1990, even 1991 or 1992, what follows? Miss Gill's next refers to Emmott v Minister for Social Welfare [1993] ICR 8 a decision of the E.C.J.. The point here was as to whether the Irish Government could successfully rely upon a domestic law time bar in response to an application for judicial review of a decision to deny equality of benefit notwithstanding a Council Directive to the contrary. Per the headnote: "..... Community law precluded the competent authorities of a member state from relying, in proceedings brought against them by an individual before the national courts in order to protect rights directly conferred by Article 4(1) of Directive (79/7/E.E.C.), on national procedural rules relating to time limits for bringing proceedings so long as that member state had not properly transposed that Directive into its domestic legal system." The essential principle for Miss Gill's purpose emerges from the following passage in the judgment:-
21. So long as a Directive has not been properly transposed into national law, individuals are unable to ascertain the full extent of their rights. That state of uncertainty for individuals subsists even after the court has delivered a judgment finding that the member state in question has not fulfilled its obligations under the Directive and even if the court has held that a particular provision or provisions of the Directive are sufficiently precise and unconditional to be relied on before a national court.
22. Only the proper transposition of the directive will bring that state of uncertainty to an end and it is only on that transposition that the legal certainty which must exist if individuals are to be required to assert their rights is created.
23. If follows that, until such time as a Directive has been properly transposed, a defaulting member state may not rely on an individual's delay in initiating proceedings against it in order to protect rights conferred on him by the provisions of the Directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time."
E. Submits Miss Gill - on this point with the agreement of Mr Underhill - BCC is a 'state body' as distinct from a private entity. Given that, as she would submit, the U.K. as a member state had done nothing at any material time to make known the full potential of Article 119 as a basis for these claims, BCC cannot now invoke any time limit save one running from such point in time by which the development of case law served to establish legal certainty. Thus, there is, she submits, no significant difference between transposing a directive into national law and the revelation through case law of the true scope of Article 119.
F. Miss Gill is then able to sustain this latter stage in her argument by invoking a recent decision of the E.A.T. sitting in Edinburgh: Rankin v British Coal Corporation [1993] IRLR 69. The essential chronology was:-
31st March 1987. Mrs Rankin is dismissed for redundancy. Given that she was then aged 61, any claim for a statutory redundancy such as would have been available to a male employee was debarred under the then provisions of the Employment Protection (Consolidation) Act 1978.
16th January 1990. Section 16(2) Employment Act 1989 revoked from this date the discriminatory provisions but without retrospective effect.
9th April 1990. Her originating application for a redundancy payment invoking Article 119.
17th May 1990. Decision in Barber v Guardian Royal Exchange (op. cit.)
Was Mrs Rankin's application out of time given the six months limitation period prescribed by Section 101(1) of the Act, as was contended for by her former employers? In answering this question, the E.A.T. reviewed the authorities and direct itself (paragraph 18) "It seems to us to follow that the principle of legal certainty is one of the principles of Community law to which a national court is required to give effect". Coming to its conclusion (paragraph 28) it directed itself "that a period for bringing claims in the region of three to six months could not properly be stigmatised as unreasonable, given that the starting date for the running of the period is also reasonable. The critical question seems to us to be to decide at what point of time the period for the bringing of claims should be held to begin. For the purpose of the present case the choice appears to us to lie between the date of the appellant's redundancy, 31st March 1987, and the date upon which it could reasonably be said to be clear to any person affected, such as the appellant, that such a claim could properly be made." The E.A.T. noted that Mrs Rankin's application had been brought before the decision in Barber (so that that decision did not initiate the relevant time limit) but within three months of the 16th January 1990. With hesitation it concluded: "In the end, it seems to us that we are forced, on however inadequate a basis, to take a view as to the equities involved, and we have come to the conclusion that the protection of the rights conferred under Article 119 of the Treaty should prevail, at least to the extent that a claim brought within a reasonable period after the coming into force of the amending legislation should be regarded as timeous."
Submits Miss Gill, with rejection of the date of the redundancy as marking the inception of the time limit, the E.A.T. identified as its preferred alternative: "the date upon which it could reasonably be said to be clear to any person affected ..... that such a claim could properly be made." Turning to the instant case she invokes 17th May 1990 (Barber), 24th April 1991 (McKechnie) or even 17th June 1992 (Cannon).
G. Thus, she submits that the three month limit did not start running until one or other of these dates. If the latter date (17th June 1992) was appropriate then Mrs Keeble's claim was in on time. If either one of the first two dates was appropriate then, granted that her claim was out of time, the Tribunal could and should exercise the discretion provided by domestic law through Section 76(5), which discretion must be available for the purposes of Community law if claims pursuant to the latter are not to be treated less favourably. Any exercise of that discretion would be favourable to Mrs Keeble - not least because McKechnie was not reported until July 1991.
H. Finally, she submits that there is no sensible distinction to be drawn between Mrs Keeble's position and that of either of her other clients.
The Industrial Tribunal
So much for the essence of Miss Gill's well sustained argument. We interpose. Substantially the same argument (some interim refinement was inevitable) was addressed by her successfully to the Industrial Tribunal who responded with Full Reasons that commanded our admiration. The commitment and care as thereby revealed are exemplary. In essence it adopted proposition G - arguably, as it thought, Miss Keeble's claim was within time and in any event discretion could be exercised in favour of all three ladies.
The Appellants' Case
This then brings us to the essence of the present appeal. Mr Underhill Q.C. submitted that the Industrial Tribunal was wrong save with respect to so much of Mrs Keeble's complaint as related to the statutory payment:-
a. Let it be supposed that Rankin was correctly decided and is thus persuasive, time started to run on either the 16th January 1990 (when the U.K. implemented the relevant Directive with the amendment introduced by Section 16(2)) or the 17th May 1990 (Barber). Whichever be the date on which time started to run, the appropriate time limit had long since expired before any of these claims were made. Thus, they can only be sustained by exercise of a Section 76(5) 'type' discretion. That said, the Industrial Tribunal made no attempt to exercise such discretion judicially - substantially it has to be conceded, because of the way that the matter was presented to it. Thus there were no findings of fact on the basis of which there could be a lawful exercise of discretion. Typically, there was no finding as to why Mrs Keeble had delayed until 24th July 1991 and why therefore discretion should be exercised in her favour.
b. Plainly any judicial exercise of discretion has to take into account, inter alia, the period of delay and as to this, Rankin should not be followed as a guide to identifying when time starts to run. He submits that, as with domestic law applications, time starts to run with the act complained of - for Mrs Keeble the 27th August 1989, the date of the computation that is discriminatory. In a nutshell: Rankin is wrong and should not exercise the otherwise appropriate persuasive effect upon Industrial Tribunals and upon this Tribunal.
c. If time started in each case to run from the act complained of, it is the more difficult to envisage findings of fact that would serve to sustain the exercise of Section 76(5) `type' discretion in favour of any of the applicants.
Given our preference for these submissions, we proceed from this summary to our judgment, thereby obviating repetition.
The Judgment of this Tribunal
To assist clarity, we proceed as follows:-
a. On close analysis, Miss Gill's argument as to the application of the procedural conditions that define and provide for the operation of time limits (the Section 76 conditions) does not impugn the conditions as such - plainly there is nothing intrinsic to such that puts her clients at a comparative disadvantage by reason of their reliance on Community law. As explained above, her objection is to the reliance upon such by BCC so as to contend that her client's respective applications are so out of time as to be outwith the jurisdiction of the Industrial Tribunal - such is objectionable because BCC as an `emanation of the state' is seeking to take advantage of the member state's delay and prevarication in the task of making Community law accessible to those who are the victims of sexual discrimination. On that analysis, is it necessary to impugn the conditions, given that they include the Section 76(5) discretion? If she be right and it would be inequitable for BCC to have the benefit of an expired time limit, then by the same token there is a basis for a finding by the Tribunal that it would be just and equitable to consider the complaint notwithstanding the affluxion of time, that is, the conditions as they are provide the answer.
b. The procedural exercise advocated as an alternative to the simple application of the conditions as prescribed by Section 76 is, we hold, unnecessary and potentially disadvantageous. In place of a clearly ascertained time limit mitigated where appropriate by a Section 76(5) exercise of discretion, there is to be a nebulous date of inception calling for an initial and sophisticated adjudication (witness this case) with Section 76(5) discretion potentially yet to come. We can see disadvantage to applicants, respondents and Tribunals.
c. In any event we cannot readily discern the legal uncertainty that underpins Miss Gill's argument. As at the respective acts complained of, each person had recourse to a Community law complaint based on Article 119 and Section 2(1) European Communities Act 1972. There was no legal step then still to be taken in order to provide a 'cause of action'. Each could have brought the respective complaint timeously - and there was evidence before us that other like complainants who did so ultimately succeeded.
"..... though there was no relevant provision setting out a time limit in respect of claims made under Community law, English law was capable of evoking, if necessary by analogy to statutory or common law periods which were clearly laid down, a time limit for the bringing of similar claims; that, where the claim was brought against a government emanation, any time limit would not start to run until the failure of the state to comply with its obligations under Community law had been made good; and that, as no system of law would have introduced a time limit shorter than one month and 12 days, which was the period between the date when the provisions of paragraph 4 of Schedule 4 to the Act of 1978 was changed by the Act of 1989 and the date of the employee's originating application, the application was not out of time and the employee's claim to recover the amount deducted should succeed ..... Emmott v Minister for Social Welfare ..... applied."
a. Having, in the passage already cited, posed as a rhetorical possibility that time might start to run with the act complained of, we cannot discern in the subsequent part of the judgment any clear indication as to the basis for rejecting that option, certainly none that has operated to persuade us that our inclination without benefit of authority was wrong.
b. The Tribunal makes no reference to Section 76(5): if time had started to run with the act complained of, why should not Mrs Rankin's delay have been adjudicated upon by reference to that single, simple exercise of discretion? Why should the Tribunal be concerned with two exercises of discretion, the first as to the inception of the time limit, the second (as here) to delay subsequent to the expiry of the limit?
c. Given that Mrs Rankin was relying on Article 119, the choice of the 16th January 1990 as the inception of the time limit is not readily understood - it has already been pointed out that Section 16(2) of the 1989 Act did not have retrospective effect and we add the observation that it does not purport to bear upon Article 119. What legal certainty relevant to Mrs Rankin's claim was achieved as at that date cannot easily be discerned.
d. In pursuing a solution to take into account legal certainty, we may query, first whether it found it and second, whether the result is not procedural uncertainty.
e. Finally, we can find no consideration of the respondents in the debate on the equities. There is here a remarkable contrast with one of the concerns of the common law courts: should discretion be exercised in favour of a dilatory Plaintiff so as to deprive the Defendant of a potentially good limitation point?
Mrs Keeble. With respect to her claim of £272.80 as representing the shortfall in her statutory payment, the appeal is dismissed. Further having regard to the concessions, we do not remit for a further hearing: her complaint succeeds in that sum.
With respect to her further claim representing the shortfall in her voluntary payment, the appeal is allowed to the extent that there be substituted for the decision of the Tribunal that it had jurisdiction to hear this claim, a decision that it did not have jurisdiction unless and until it finds, in all the circumstances of her case, that it is just and equitable to consider her claim not withstanding that it is out of time. We remit her further claim for the Tribunal to exercise that latter discretion.
Mrs Watkinson and Mrs Kilburn. The appeals of BCC are similarly allowed and similar orders are made.