United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR B NAPIER (of Counsel) Messrs Nabarro Nathanson Solicitors 1 South Quay Victoria Quays Wharf Street Sheffield S2 5SY
For the Respondents	MS T GILL (of Counsel) Instructed by: Stephen Gallagher Messrs Thompsons Solicitors Arundel House 1 Furnival Square Sheffield S1 4QL


 


PRIVATE 

MRS JUSTICE SMITH: This is an appeal from a decision promulgated on the 3rd April 1996 of an Industrial Tribunal sitting at Sheffield. The Tribunal held that they had jurisdiction to hear the two respondents' claims that they had been discriminated against on the ground of their sex. They accepted jurisdiction although the claims had been lodged outside the time limit provided by Section 76(1) of the Sex Discrimination Act 1975.

Section 76(1) provides:

"An Industrial Tribunal shall not consider a complaint ... unless it is presented to the Tribunal before the end of the period of three months beginning when the act complained of was done."

Section 76(5) provides:

"A Court or Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers it is just and equitable to do so. "

This Tribunal concluded that it was just and equitable for these claims to proceed.

Mrs Keeble and Mrs Watkinson, the respondents, worked for the appellants, British Coal Corporation, for several years until they were dismissed as redundant in August 1989. Each had volunteered for redundancy under a scheme set up by the employers to encourage voluntary redundancies. Each had reached her decision to volunteer in reliance upon a discussion with an employee of the appellants who had calculated the redundancy payments to which the employee would be entitled, both under the statutory scheme and under the more generous voluntary scheme. Neither woman was told that under the voluntary scheme, the amount payable to women over the age of 55 would be abated according to their age. That abatement would apply in their cases. For men, the abatements applied only over the age of 60. If these two women had been men, their payments under the voluntary scheme would not have been subject to abatement. Thus the voluntary scheme provided for different treatment for women and men.

When the respondents learned that their anticipated payments were to be abated and that they would not receive as much as they had expected, they were very upset and took advice from their trade union, the National Union of Mineworkers, the NUM. The union advised that nothing could be done. That advice is not surprising as such would have been the generally held view of the law at that time. It was only some time after the publication in June 1990 of the decision of the European Court of Justice in Barber-v-Guardian Royal Exchange Insurance Group Case C 262/88, that Mr Gallagher, the Trade Union official who had advised Mrs Keeble, realised that it might be possible for her to bring a claim under the Sex Discrimination Act 1975. The Barber case had decided that benefits received on redundancy are to be treated as 'pay' within the meaning of Article 119 of the EEC Treaty and that it was an infringement of the principle of equal pay if, on redundancy in similar circumstances, a man and a woman received different benefits. Article 119 could be relied upon in the national courts of a member state which had the duty to safeguard the rights of an individual. Mr Gallagher realised that Mrs Keeble could allege that the appellants' voluntary redundancy scheme unlawfully discriminated against women. He took Counsel's advice. Following that, Mrs Keeble was advised of the possibility of making a claim. She lodged her application in July 1991, 22 months after her dismissal.

Mrs Watkinson's history is similar. She too was misled as to the amount of money she would receive under the voluntary redundancy scheme. She too was distressed when she discovered that her redundancy payment was to be reduced under the abatement provisions. She too took the advice of her union the NUM and was advised in 1989 that she had no remedy. However, in early 1992, she saw an article in the "Yorkshire Miner" explaining the legal position as it was now appreciated to be. She immediately consulted the union again and an originating application was lodged on the 21st February 1992, 2.5 years after her dismissal.

British Coal Corporation took the preliminary point that these applications and two similar applications were out of time pursuant to Section 76 of the Sex Discrimination Act 1975. It was common ground that the discriminatory act complained of had taken place in August 1989 at the time of the dismissals for redundancy. The applicants asked the tribunal to extend time under Section 76(5).

At the first hearing which took place in 1993, the Industrial Tribunal reached its decision without hearing evidence. They considered an agreed statement of facts put before them by the parties. In three of the four cases they extended time, holding it was just and equitable so to do. In the fourth case, where the delay between the act complained of and the lodging of the application was of the order of twelve years, they dismissed the claim. There was no appeal from that decision. In the three cases where time had been extended, the employers appealed. The EAT remitted the case for rehearing, directing that the issue of whether it was just and equitable to extend time should be decided on the basis of the circumstances of each individual case after hearing evidence. The EAT also advised that the Industrial Tribunal should adopt as a check list the factors mentioned in Section 33 of the Limitation Act 1980. That section provides a broad discretion for the Court to extend the limitation period of three years in cases of personal injury and death. It requires the court to consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances of the case and in particular, inter alia, to -

(a) the length of and reasons for the delay;

(b) the extent to which the cogency of the evidence is likely to be affected by the delay;

(c) the extent to which the party sued had co-operated with any requests for information.

(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action.

(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.

The decision of the EAT was not appealed; nor has it been suggested to us that the guidance given in respect of the consideration of the factors mentioned in Section 33 was erroneous.

Two of the three cases came before an industrial tribunal in Sheffield for re-hearing. The third was adjourned on account of the applicant's illness. The tribunal heard extensive evidence. They made detailed findings of fact as to the circumstances in which the applicants had decided to volunteer for redundancy and the effect upon them of the misleading information they had been given as to their entitlement under the scheme. They considered the attitude of the applicants to the possibility of making a claim and the advice they had taken in 1989. They considered the promptness with which the applicants made their claims when they learned that the law was not as they had previously been told. They considered the prejudice which the women would suffer if their claims were not allowed to proceed and they considered the absence of any prejudice to the employers, other than the loss of their limitation defence. They said that the claim appeared unanswerable apart from the limitation point. Mr Napier who has appeared today on behalf of the appellants has conceded that that is so.

The tribunal then considered the applicable law and the submissions of counsel. At the forefront of the appellants' submission was the Court of Appeal decision in Biggs v Somerset County Council 1996 ICR 364, which was at that time unreported. They considered many cases decided under the provisions of Section 33 of the Limitation Act 1980, as suggested by the EAT. They then considered their decision under Section 76(5) of the Sex Discrimination Act 1975 in respect of each of the two respondents. In each case they held it would be just and equitable for the claims to proceed.

The case of Biggs was central to the appellants' arguments before the industrial tribunal and to their argument before us. Mrs Biggs was dismissed by Somerset County Council in 1976. She had been employed to work only 14 hours a week. At the time of her dismissal the provisions of Schedule 1 of the Trade Union and Labour Relations Act 1974 prevented an employee who normally worked for less than 21 hours a week from bringing a claim of unfair dismissal. It appeared that Mrs Biggs could not claim. In 1978, the relevant provisions were amended in the Employment Protection (Consolidation) Act 1978 (the 1978 Act) but a difference between the qualifying conditions for part time and full time workers was maintained.

In 1972, the United Kingdom had signed the EEC Treaty and had acknowledged the primacy of Community law. From that time and in particular after the decision of the European Court of Justice in Defrenne v Sabena (case 43/75) it would have been possible for a dismissed employee such as Mrs Biggs to claim she had been unfairly dismissed and seek to persuade the tribunal to disapply the discriminatory provisions on qualification as being incompatible with Article 119 of the EEC Treaty. However, in 1976 Mrs Biggs did not realise this and was not advised as to her rights. In general the legal profession had not appreciated the wide ranging impact which Community law was having on domestic law.

It was not until the decision of the House of Lords in March 1994 in R.-v- Secretary of State for Employment ex-parte Equal Opportunities Commission 1995 1 AC 1 that it was recognised that the different qualifying requirements for part time and full time workers were indirectly discriminatory against women and as such incompatible with Community law. A part time employee dismissed by an employer who was an emanation of the state could bring a claim for unfair dismissal and invite the industrial tribunal to strike out the discriminatory provision as incompatible with Community law. On 1st June 1994, Mrs Barber presented a claim alleging that she had been unfairly dismissed in 1976. The industrial tribunal held that they had no jurisdiction to hear the claim; it was long out of time. The EAT dismissed her appeal as did the Court of Appeal.

Several arguments had been advanced at each stage. The only one of relevance to this appeal was the consideration in the Court of Appeal of whether the tribunal should have accepted jurisdiction notwithstanding the delay in presentation on the basis that it had not been reasonably practicable for Mrs Biggs' complaint to have been presented within the 3 month period allowed by the 1978 Act. Section 67(2) of the Act provides:

"An industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal before the end of the period of 3 months beginning with the effective date of termination or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of 3 months."

The Court of appeal dismissed Mrs Biggs' appeal and in a part of his judgment which appears under a sub-heading entitled "Whether it was reasonably practicable to present a claim in 1976" Neill LJ said:

"In the end, however, I have been driven to the conclusion that, if the words `reasonably practicable' are properly construed in their context, Mummery J was correct in concluding that it was reasonably practicable for Mrs Biggs to have made her claim within the time prescribed. Her mistake as to what her rights were was, as has now been made clear, a mistake of law. It was not a mistake of fact.

The decision in the EOC case was declaratory of what the law has always been ever since the primacy of Community Law was established by section 2 of the European Communities Act 1972. Indeed, as Mummery J pointed out, Mrs Biggs relies on the retrospective effect of the EOC decision. Accordingly, since 1 January 1973, and certainly since the decision of the European Court of Justice in Defrenne v Sabena [1976] ICR 547 there was no legal impediment preventing someone who claimed that he had been unfairly dismissed from presenting a claim and arguing that the restriction on claims by part-time workers was indirectly discriminatory.

It seems to me that in the context of section 67 of the Act of 1978 the words `reasonably practicable' are directed to difficulties faced by an individual claimant. Illness provides an obvious example. In the case of illness the claimant may well be able successfully to assert that it was not `reasonably practicable' to present a claim within three months. But the words `reasonably practicable' when read in conjunction with a `reasonable' period thereafter point to some temporary impediment or hindrance. It is to be noted that in the EOC case, supra, at page 325, Lord Keith of Kinkel expressed the view that Mrs Day, who was an individual party to the proceedings, could bring her private law claim for a redundancy paryment before an industrial tribunal and argue there that the restrictions imposed on part time workers were not objectively justified and should be disapplied. Mrs Biggs could have taken a similar course in 1976.

I have found this to be an anxious point because Mrs Biggs' employment came to an end in 1976. At that time it had been generally accepted doctrine for centuries that courts and tribunals were required to apply the law as passed by Parliament. The fact that after 1 January 1973 Acts of Parliament and other United Kingdom legislation might have to yield to provisions determined by a different and superior system of law was, I suspect, fully appreciated by only a comparatively small number of people. But in my view it would be contrary to the principle of legal certainty to allow past transactions to be circumvented because the existing law at the relevant time had not yet been explained or had not been fully understood.

If this analysis is correct, it follows that the fact that it was not until 3 March 1994 that the House of Lords declared that the threshold provisions of the Act of 1978 were indirectly discriminatory, unless objectively justified, cannot be taken into account as a ground for arguing that it was not `reasonably practicable' before that date to present a claim within the time limit."

The Court also dismissed the other arguments raised on behalf of Mrs Biggs.

In the instant case the industrial tribunal considered the case of Biggs. The argument for the employers was that although Biggs was decided in the context of a different statutory framework, Lord Justice Neill's words were of general application. Mrs Keeble and Mrs Watkinson were in a similar position to Mrs Biggs. They had not presented their claims promptly because they had made a mistake of law. They had been advised in accordance with what was generally perceived to be the law and they had not been advised as to the true state of the law until after publication of the Barber decision in June 1990. Counsel acknowledged that the discretion given to the tribunal under section 76(5) of the SDA 1975 (to extend time if in all the circumstances it was just and equitable to do so,) was much wider than the discretion afforded under section 67(2) of the 1978 Act. He argued that Neill LJ had made it plain that the fact that the claimant had made a mistake over his or her position under European law could not provide a basis for the exercise of a discretion to extend time.

The industrial tribunal rejected this submission. They drew a clear distinction between the task of a tribunal under section 67(2) of the 1978 Act and their task which was to consider all the circumstances and decide what was just and equitable. They said that 'the principles set out in Biggs v Somerset County Council are only to be considered, if at all, in the light of the principles of `just and equitable' and section 33 of the Limitation Act 1980.' They went on to consider a wide range of circumstances in each of the two cases. These implicitly included the fact that each applicant had been under a misapprehension as to the law as the result of the advice given by the NUM. They noted that if the women were left to sue the Union they would have only a speculative claim. They held it to be just and equitable to allow each claim to proceed.

In this appeal, Mr Napier for the appellants made only one submission, namely that the tribunal erred in their approach to the decision of the Court of Appeal in Biggs. He submitted that Neill LJ's dicta were intended to apply to all cases in which a tribunal had to exercise a discretion to extend time. The tribunal was required to leave out of account the applicant's excuse that the delay in presenting the claim was due to a misunderstanding of the true position under European law.

For this general proposition he relied upon the passage of Neill LJ's judgment in which he said that `it would be contrary to the principle of legal certainty to allow past transactions to be reopened and limitation periods to be circumvented because the existing law at the relevant time had not been explained or had not been fully understood'. He submitted that the Appeal Tribunal is bound by that statement of the law, as indeed we are if it was intended to apply to all limitation periods and not only to the statutory provision under direct consideration, section 67(2) of the 1978 Act.

Taken out of context, we must immediately accept that the words are capable of being of general application. If they were intended to apply generally, we cannot see any reason to limit the restriction to mistakes as to the applicant's rights under European law. Mr Napier could not suggest any rational explanation as to why his proposition should only apply to cases where the misunderstanding arose from the impact of European law. We do not think there is any such reason. If he is right, any mistake as to the state of the law or the applicant's rights under it would have to be left out of account in the exercise of the discretion to extend time or to disapply a limitation period.

Mr Napier acknowledged that the discretion conferred by section 76(5) of the SDA 1975 is very wide, much wider than that conferred by section 67(2) of the 1978 Act. He accepted that it is as wide as the discretion conferred by section 33 of the Limitation Act 1980. He accepted that there are many reported cases under that Act in which a mistake of law or inaccurate advice given by a lawyer as to the state of the law has been taken into account in the exercise of the discretion to disapply the limitation period. If Neill LJ's words are of general application, cases such as Halford v Brookes [1991] 1WLR 429 CA must have been over ruled.

He accepted too that, if his submission were correct, the statutory words of section 76(5) would in effect be amended so that the court could not take into account all the circumstances of the case, but all the circumstances save for one. It seems to us that if the only reason for a long delay is a wholly understandable misapprehension of the law, that must have been a matter which Parliament intended the tribunal to take into account when considering `all the circumstances of the case'. Yet, if Mr Napier's submission is right, and the tribunal is forbidden to consider the reason for the delay, the effect would be that there could be no excuse for the delay. The almost inevitable consequence, unless the delay were very short, would be for the tribunal to refuse to extend time. Thus an applicant who had delayed, say for a year, through excusable ignorance of his rights would be in no better position than one who had simply not stirred himself to present his claim for the same period of time.

For all these reasons, we are quite satisfied that Lord Justice Neill intended his ruling to apply only in the context of section 67(2) of the 1978 Act and the consideration of whether it was reasonably practicable for the applicant to present her complaint in time.

In our judgment this tribunal was quite right when they said that the principles of the Biggs case should 'only apply if at all in the context of `just and equitable'.' What they meant by that, we think, was that it was right for them to bear in mind the need for legal certainty and finality in litigation, but that was only one factor to take into account when they had to consider what was just and equitable in all the circumstances.

In our view this tribunal did not misdirect itself in it approach to the case of Biggs. As Mr Napier has accepted, there is no other basis on which he could criticise their approach. Accordingly this appeal must fail.