United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1252_95_1803

Appeal No. EAT/1252/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18 March 1996

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR A C BLYGHTON

MR J A SCOULLER

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MR G D A WILLS          APPELLANT

LONDON GUILDHALL UNIVERSITY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant APPELLANT IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary Hearing of an appeal in litigation which has been before this Tribunal on several previous occasions. The parties are Mr G D Wills, formerly employed by the London Guildhall University (previously the City of London Polytechnic) as a Senior Lecturer in Accountancy and Business Finance, and the London Guildhall University. The decision appealed is of the Industrial Tribunal held at London (North) on 24 October 1995.

After hearing Mr Wills in person and considering written representations submitted by the University, the Tribunal unanimously decided that Mr Wills's complaint of sex discrimination should be dismissed, as the Tribunal had no jurisdiction to entertain it. That complaint of sex discrimination was the subject of an application presented to the Tribunal by Mr Wills on 19 June 1995. According to the brief details contained in the IT1, his complaint was that his sex discrimination case had been in relation to his employment. The dates of that employment were given as between 1 September 1973 and 31 August 1992 when he was dismissed. The claim was further to his listed unfair dismissal action, Case Number 58836/92.

Mr Wills appealed against that decision by serving a Notice of Appeal on 21 November 1995. After the service of the Notice of Appeal, the hearing took place of Mr Wills's claim for unfair dismissal against London Guildhall University (Case Number 58836/92). That hearing took place at London (North), before a different Tribunal than heard the jurisdictional question, between 5 and 8 February 1996. The Tribunal came to the unanimous decision that Mr Wills had been unfairly dismissed. The extended reasons for that decision were sent to the parties on 21 February 1996.

Two short passages in that decision are relevant to the submissions of Mr Wills on this appeal. The first passage is in paragraph 28 of the decision, which summarised the litigation following Mr Wills's dismissal from his position in 1992. There were High Court actions. In paragraph 28 they say this:

"... At a late stage in these proceedings the Applicant applied to add a complaint alleging sexual discrimination. That was refused and he appealed to the Employment Appeal Tribunal, who dismissed his appeal. He subsequently submitted a fresh application to this Tribunal alleging sex discrimination on the same basis, which was dismissed as being out of time and he has appealed that decision to the Employment Appeal Tribunal. [That is a reference to this appeal.] On that information and having looked at the papers in the case we commenced with little sympathy for the Applicant, but on hearing the Respondent's evidence it soon became apparent that he had reason to be vexed by his treatment even though his reaction to that went too far."

A judgment dismissing the appeal against the refusal of leave to amend, was given by this Tribunal on 10 October 1995. It was held in that Preliminary Hearing that the Chairman of the Tribunal was right in refusing leave to amend, because Mr Wills was seeking to raise a fresh cause of action outside the time limits, for raising a complaint of sex discrimination, and that the Chairman was entitled to refuse to exercise the discretion to extend the time.

After that dismissal Mr Wills sought to have the matter referred to the European Court of Justice. That application was refused for reasons given in a separate judgment on the same day. The arguments advanced by Mr Wills on the basis of European Community Law, in particular the Equal Treatment Directive and the principle laid down by the European Court of Justice in Emmott, were rejected for the reasons stated. That completes the procedural history of the attempts made by Mr Wills to have his unfair dismissal Case 58836/92 amended to include a claim for sex discrimination out of time. The other relevant paragraph in the decision of the Tribunal in February is paragraph 41, which stated the conclusion of the Tribunal that Mr Wills had been unfairly dismissed. The Tribunal said:

"... In our view the investigation carried out was so wholly inadequate that it would be impossible to make a fair decision on that information and we are unanimous in our view that the dismissal on that basis was unfair."

As Mr Wills accepts, there were no findings by the Tribunal relating to discrimination against him in the treatment of him by the University, because that was not an issue in the case.

In the decision, the extended reasons for holding that there was no jurisdiction to entertain the new case were first, that Mr Wills was out of time for starting his new case, just as he was out of time for seeking an amendment to his unfair dismissal case, and secondly, it was not a case where the Tribunal would exercise the discretion to extend the time on the grounds of being just and equitable. On this appeal, Mr Wills submitted that the Tribunal were erroneous in law on both points. In the decision, the Chairman set out in paragraph 2 the history of the dispute between Mr Wills and London Guildhall University. The Chairman said this in paragraph 3 of the decision:

"As we put to Mr Wills during the course of the argument, this appears to be his 5th bite of the cherry. He did not deny it. It might therefore be thought with some justification that, given that he is prima facie significantly outside the three month time limit in section 76(1) of the 1975 Act that it would not be just and equitable for the time limit to be extended under section 76(5). Notwithstanding, Mr Wills has submitted a detailed 9 page skeleton argument which he has developed before us as best he can. But with respect to him his position is quite hopeless. There must be finality in litigation. He has made four previous unsuccessful attempts, two at first instance and two on appeal, to launch sex discrimination proceedings. The basis of the complaint on his own admission, has been the same throughout, even if the language in which it has been expressed and the arguments advanced in support of it, have varied. In those circumstances it plainly cannot be just and equitable in all the circumstances for the Tribunal to consider these proceedings brought, as they are, some 2 years and 9 months outside the time limit. They are accordingly dismissed."

That states the reasons why the Tribunal refused to extend the time in the exercise of discretion under Section 76(1). The Tribunal explained in paragraph 4 of the decision why Mr Wills's submissions referring to Community Law were misconceived. In our judgment, the Tribunal were right on both aspects of the case. We will deal first of all with the question - was the claim in time? Looking purely at the Sex Discrimination Act 1975 it was not. Section 76(1) says:

"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."

The act complained of was his dismissal in August 1992. Here was he in June 1995 trying to bring a claim for sex discrimination. Mr Wills sought to avoid that consequence by saying that he was relying not only on the 1975 Act, but also on the Equal Treatment Directive, which does not contain any time limits. The person against whom he is invoking the Equal Treatment Directive is an emanation of the State. On the basis of the principle of Emmott, time limits do not apply where the respondent State has failed to implement the Directive.

We asked Mr Wills what was the time limit if it was not three months period. He said that it was six years. There was the nearest analogous time limit for the enforcement of private rights; for example, contract and torts, other than personal injuries actions. In our view, these arguments are misconceived for these reasons: first, on the Emmott principle, Mr Wills is not entitled to invoke it, because he cannot show that the United Kindgom Government, have failed to implement the Directive in relation to the rights which he is seeking to protect. He claims, in the sex discrimination complaint, that he was treated less favourably than a woman would have been treated in similar circumstances.

The equal treatment principle in the Directive has been implemented in the provisions of the Sex Discrimination Act 1975, which give remedies for direct and indirect discrimination on grounds of sex. The Emmott principle only applies where there is a default of the State in implementing a Directive. There has been no such default here. Secondly, it is a principle of Community Law that rights conferred by it are enforced in national courts, subject to national time limits, procedures, and remedies. This is of necessity, because there are no Community courts for the enforcement of rights by individuals against Member states. The European Court of Justice is not a court in which rights are enforced. It is a court in which the law of the Community is interpreted for the benefit of the Courts of member states, in which the rights conferred are enforced.

There are two limitations on the principle of national time limits, procedures and remedies. The first is that they must not be discriminatory of claims under Community Law. In other words, the procedures and time limits must not be less favourable for community rights than they are for purely domestic actions of a similar kind. Secondly, the procedures and time limits must not be such as to render the exercise of the community rights virtually impossible in practice. Both of those limitations are laid down in the case of Reane and European Court decisions since then. Mr Wills misunderstands the reference to time limits in "domestic actions of a similar nature". In our view, the Industrial Tribunal was right in saying that the relevant time limit for invoking the Directive was that contained in Section 76 of the Sex Discrimination Act. That is the Act through which the rights conferred by the Directives are enforced. Those time limits are clear and reasonable, three months from the act of discrimination complained of.

It is not open to Mr Wills (or to anybody else) to seek to extend the time limits for a statutory claim by invoking other areas of law, such as areas of the common law relating to contract and tort, for a more generous time limit, which will overcome the time difficulties in bringing an action under the statute, such as the 1975 Act. The reasons of the Industrial Tribunal in paragraphs 4A-D of the decision are a correct analysis of the position on Mr Wills's attempts to invoke the Directive to side-step Section 76 of the 1975 Act. The manoeuvre does not work. The time limit is the same, whether the claim is brought purely under the 1975 Act as a domestic action, or whether the Directive is invoked. We are unable at present to see anything in the Directive additional to the rights enacted in the 1975 Act so far as they are relevant to Mr Wills's claim. We add that we have assumed, without deciding, that London Guildhall University is an emanation of the State.

Mr Wills relies on what may be called the "additional data" point. He submits that, since the Tribunal refused to exercise its discretion to extend the time on the just and equitable jurisdiction in Section 76, new data has come to light in the hearing and in the decision of the Industrial Tribunal in his unfair dismissal case. If the Industrial Tribunal hearing his application to extend time on 24 October 1995 had known that there were facts which the London Guildhall University had held back, and which constitute data which has only now become available, the Tribunal might have exercised that discretion differently. He says there is material relevant to the discretion which has been suppressed by the University. The proper course is to allow this appeal to proceed, and, if the appeal succeeds, for the case to be remitted to the Industrial Tribunal to reconsider the exercise of the discretion.

This argument has more substance than the argument that the case is not out of time, but we have decided it is not arguable in law for this reason: there are rules against re-litigation, in more precise technical terms, res judicata and issue estoppel. Mr Wills unsuccessfully attempted in the unfair dismissal proceedings to bring a sex discrimination case. It was decided by the Industrial Tribunal and by this Tribunal on appeal, that he could not amend to bring the sex discrimination case, because he was out of time for bringing it. In all the circumstances it was not just and equitable to extend the time.

Mr Wills is now seeking after that litigation has been completed, to litigate the claim which he was told could not be brought in those proceedings, as he was out of time. In our view, it was not just and equitable for him to bring the claim in those proceedings and it is not just and equitable for him to bring the claim now those proceedings are over. The case is even further out of time than it was when he sought the amendment. He has not produced anything which would justify saying that there was an error of law in the exercise of the discretion. The discretion is a matter for the Tribunal. It is for them to exercise it on the basis of the material before them. We have not seen anything in the decision of the Industrial Tribunal notified on 21 February 1996, which could be argued to vitiate the exercise of the discretion on just and equitable grounds.

It is important to note that Mr Wills's success in the claim for unfair dismissal was not on the basis that he was treated in a manner that was discriminatory and therefore unlawful. The basis of his success in the unfair dismissal case was that the matter had not been dealt with fairly and reasonably, because of the inadequacy of the investigation into the relevant complaints. We are unable to find an arguable error of law in the decision of the Industrial Tribunal that the claim is out of time, or in the refusal to extend time. We see substantial objections to Mr Wills being allowed, in this new action, to re-litigate points already resolved by decisions refusing amendments in the previous action. For those reasons we will not allow this case to proceed to a full hearing. The appeal is dismissed.