United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS WARREN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE C SMITH QC: This is an application by Mr Major, the Applicant before the Industrial Tribunal. We have had the benefit today of hearing from Counsel, Miss Warren, under the ELAAS Scheme, who has put the matter very helpfully and clearly to us.

It is an application, as I said, by Mr Major, for leave to proceed to a full hearing of his appeal against the decision of an Industrial Tribunal held at Brighton on 27 May 1997, when the Industrial Tribunal dismissed his claim for sex discrimination under the Sex Discrimination Act 1975 and the concurrent claim he had under the Equal Pay Act 1970 was withdrawn.

As appears from Mr Major's grounds of appeal and, indeed, what Miss Warren has said to us today, his complaint is in substance that he and other wardens, who had been employed by the Respondent Housing Association after the Association had taken over the tenants of the various control properties from the Mid Sussex County Council, had, unjustly in his view, had to pay higher rents in respect of the accommodation which they were required to occupy under their service contracts with the Association, than those paid by those wardens who were already employed at the time of the transfer and who were thus transferred under TUPE to the Housing Association.

It has been made very clear to us today, in a very frank and realistic submission by Miss Warren, that it is really accepted now by Mr Major that this complaint of his of unjust treatment in relation to the New Assured Tenants (the NATs), by comparison with the Permanent Assured Tenants, does not fall within any of the remedies given either under the Sex Discrimination Act or under the Equal Pay legislation. The position is that it has now been put right but, of course, from Mr Major's point of view it has not been put right retrospectively and, therefore, this remains a matter of concern to him. The explanation for this differential given by the Respondents before the Tribunal was that it had absolutely nothing whatsoever to do with either sex discrimination or failure to treat male and female wardens equally with regard to pay. The explanation simply was that, pursuant to TUPE, all the staff who were employed before the transfer were given guarantees that their rents would not be increased following upon the transfer. Thus, it was for that reason that a distinction was made between PATs, the original staff, and NATs, the New Assured Tenants, namely those, who, like Mr Major, were taken on after the transfer.

As the Industrial Tribunal found, and this is not disputed in any way, both groups contained both men and women. Thus, by way of example, although the Applicant sought to argue that he was being discriminated against on grounds of sex by comparison with Mrs Barbara Smith, the reality was that Mrs Barbara Smith was treated differently, not because she was a woman, but because she was one of the original Council employees who were transferred at the time of the take-over by the Housing Association and who were classed accordingly as "Permanent Assured Tenants".

In our judgment (as is accepted realistically by Miss Warren, on behalf of Mr Major) this is not a matter which the Industrial Tribunal could, in any way, bring within the complaints made by Mr Major. We cannot criticise their decision as being wrong in law in any way. Indeed, it is clear that the complaint which Mr Major makes falls outside the legislation upon which he relied in bringing his complaint forward in the first place and thus there is, in our judgment, no arguable point of law arising from the decision by the Industrial Tribunal.

We have noted, and Miss Warren has made the point to us today, that Mr Major was further unsettled at the hearing, where he was representing himself, by the presentation of a very weighty bundle of documents a very short time before the hearing. We have sympathy with this situation since obviously, and particularly in the case of an applicant representing himself, this would come as an unsettling experience, additional to the understandable stress of having to present one's case "in person" in any event.

We have noted what the Chairman has had to say about that matter in his letter. Suffice it to say that we cannot regard this as being a matter which calls for any further action with regard to this appeal and suffice it to say that Miss Warren and, indeed, Mr Major himself, now accepts that there was nothing in those documents, once they were able to be examined, that could, in any way, have caused him to be able to present his case in a more effective light with regard to the legislation.

Accordingly, in our judgment, the Industrial Tribunal's decision that the Applicant's claim did not give rise to any kind of sex discrimination cannot be faulted and is in no way erroneous in law and accordingly, this application will have to be dismissed.