United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 651_95_2706

Appeal No. EAT/651/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 27 June 1996

HIS HONOUR JUDGE J HULL QC

MR J R CROSBY

MR R JACKSON

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MS N BHARANIA          APPELLANT

LONDON BOROUGH OF HACKNEY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE BY OR

REPRESENTATION ON BEHALF OF THE APPELLANT

For the Respondents MR PAUL MENDELLE

The Solicitor

London Borough of Hackney

298 Mare Street

London

E8 1HE


 


JUDGE J HULL QC: This is an appeal to us by Miss Nalini Bharania. The Respondents are her former employers, the London Borough of Hackney, who are represented before us today by Mr Mandelle.

Miss Bharania's Counsel unhappily is detained elsewhere making a bail application in the High Court, so we have not had her assistance, but Miss Bharania is content (and we think rightly content) with the concessions which are made by the London Borough of Hackney, by Mr Mandelle on their behalf. In those circumstances we propose to decide the matter as follows.

I must just shortly set out the reasons why we are doing so, because appeals are not allowed simply as of course.

Miss Bharania's employment began in September 1986. She began paid maternity leave in accordance with her contractual rights on 22 November 1992. On 27 January the Respondents granted maternity leave and the paid maternity leave finished on 8 May 1993. September 13 was the date on which Miss Bharania should have returned to work after maternity leave and she then asked for further leave and she was granted two weeks from her annual leave allowance; that ended of course on 27 September 1993.

Thereafter, what is said and we make no decision about this at all, is that there were various letters from the London Borough. Miss Bharania did not return to work and there was a letter of dismissal on 2 November 1993. No more, so far as we are concerned, arises until a letter was received by Miss Bharania, which is at page 18 of our bundle, when the London Borough wrote to her:

"Regrettably I have to advise you that you have been overpaid, during the period 3rd January 1993 to 31st January 1994. This occurred because you did not return to work after taking Maternity Leave. According to the Council's Maternity Pay agreement, you were not entitled to pay for this period.

The overpayment details are calculated as follows:-"

And then is set out a calculation showing that no less a sum than £2,705.50 is due from Miss Bharania to the London Borough. We say, of course, nothing again about that claim and whether it is justified. We have not seen the contracts and so forth, but what Miss Bharania then did was to complain about that matter and matters arising from it. In her complaint to the Industrial Tribunal, which she made on 18 April 1994, it being received on 27 April 1994, she complained of various matters: Sex Discrimination; Unfair Dismissal; Equal Pay Act; Equal Treatment Directive; Equal Pay Directive and Article 119 of the Treaty of Rome. That is, of course, an Article which has direct application and it provides that men and women are to be paid equal pay for equal work (to put it very shortly).

So those were her complaints. In the IT3, the Notice of Appearance, which was dated 12 July 1994, the London Borough made contentions, amongst other things, about their entitlement to demand the repayment of pay and they also said that the complaint for unfair dismissal was out of time and they said that the dismissal was fair. They did not make any admission to any of the claims. Again, we do not have to go into that.

The Industrial Tribunal sat at Stratford on 9 March 1995 under the chairmanship of Mr Croom-Johnson, with two industrial members. That is at page 6 of our bundle and that Tribunal said as follows:

"1. This case concerns a preliminary point of jurisdiction only, namely, whether the Applicant's case of unfair dismissal and sex discrimination were submitted within the prescribed time limits of three months.

2. The Applicant's case is that she admits that her application was out of time but that it was not reasonably practicable for her to submit the application because of serious domestic problems which took priority at the time.

3. The facts are that the effective date of termination of employment was 2 November 1993 and her application was received on 27 April, 1994."

They refer to other matters. The complaints of sex discrimination relate to matters when she was no longer employed by the Respondents, they say. That is a matter which is in issue between the parties.

"The Tribunal must find that it was reasonably practicable for the Applicant to present her claim in time and accordingly her application fails for want of jurisdiction". That, on the face of it, was dealing with the whole of the claim.

Miss Bharania has appealed to us and we cannot do better than refer to her Skeleton Argument. She sets out her various claims and calls some of them "claim a", that is to say the claims under the Sex Discrimination Act, the Equal Pay Act, the Equal Treatment Directive, the Equal Pay Directive and Article 119. Concerning those, the Skeleton Argument, drafted by Counsel, says:

" ... If the Industrial Tribunal had properly addressed itself to claim a) then it would have seen that:-

(1) The Appellant was complaining that a term in her contract of employment relating to pay was discriminatory, in that it was less favourable than a term of a similar kind in the contract under which a man was employed;"

Saying, no doubt, that of course such a term could not, in its nature, apply to a man, because she was complaining about maternity matters and no doubt, there will be other contentions.

"2(2) the Appellant was in fact asking for an equality clause to be inserted into her contract under Section 1 of the Equal Pay Act 1970 to remove the requirement that she repay her maternity pay for failing to return to work for three months after her maternity leave.

3(1) If the Tribunal did address itself to claim a) then it failed to properly direct itself as to the law in that the time limit for bringing such a claim under the Equal Pay Act is six months from when the applicant was last employed, Section 2(4) of the Equal Pay Act 1970."

Concerning the construction of that provision there has been a difference between certain Tribunals, we say again nothing about that.

"(2) If the Tribunal had properly addressed itself to the time limits under the Equal Pay Act 1970 then it would have held that the Appellant's application was made in time and that it therefore had jurisdiction to hear it.

4 The Industrial Tribunal failed to consider at all the fact that the Appellant's claim related to pay and to less favourable terms and conditions as to pay as between herself and a man and therefore came under Article 119 and the Equal Pay Directive, it therefore failed to direct itself at all as to the time limits applicable to her case in those circumstances."

Concerning those again there may be some debate, but it appears to us that the Industrial Tribunal did, indeed, not address itself to those matters.

"Claim b)". That is so describing the claim under the Sex Discrimination Act. Miss Lewis, of Counsel, points to certain matters, then she says that the test was not "reasonably practicable", which is the test under Section 67 of the Employment Protection Act, but whether it was just and equitable to permit the claim to proceed; that being the provision in Section 76(5) of the Sex Discrimination Act 1975. No doubt there will be many cases in which the application of the appropriate test will result in precisely the same result as the test under the Employment Protection Act. But that will not necessarily be so and the Applicant is reasonably entitled to expect, as a matter of elementary law, that the Tribunal which considers her complaint, in deciding whether to permit it, as a matter of discretion, applies the correct statutory test.

So the London Borough, through Mr Mendelle, says that they are content that the matter should be returned to an Industrial Tribunal differently constituted to consider those matters. It does not follow from what we have said that we are deciding any of them.

It may well be that there are submissions to be made, which ought to be heard, on the correct tests to be applied, both under the Sex Discrimination Act and under the other provisions to which we have referred, but we think it appropriate, because Miss Bharania has not been represented today, simply to remit the entire matter to an Industrial Tribunal differently constituted, so that they can hear the entire case including any submissions which are to be made to them on time limits.