United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J ALGAZY (of Counsel) Equal Opportunities Commission Overseas House Quay Street Manchester M3 3HN
For the Respondent


 


JUDGE COLLINS CBE

1. This is an appeal against the decision of an Employment Tribunal sitting at Leicester, its extended reasons being promulgated on 18 June 1999. The Respondents are the Burton Hospitals National Health Service Trust and the Secretary of State for Health.
2. The proceedings before the Employment Tribunal concerned matters of considerable general application; they dismissed the Appellant's application for a declaration that he was entitled to the same pension and lump sum benefits as a female nurse on retirement at the age of 55.
3. This is a preliminary hearing and our responsibilities are only to discern whether or not there is a reasonably arguable point of law to justify the case proceeding to a full hearing. The facts were not in dispute, and for the purposes of this judgment all I need say is that the issue before the Tribunal was whether or not the Respondents were entitled to the protection afforded by the decision of the European Court of Justice in Barber v GRE [1990] ECR I-1889 for the proposition that they were not obliged to put right inequality in relation to pensionable service prior to the 17 May 1990 or alternatively, whether the position was governed by the line of authority exemplified by the decision of the European Court of Justice in Megorrian v Eastern Health and Social Services Board [1997] ERC I-7153. To put it crudely, the question was whether at the relevant date, that is 17 May 1990, the date of the Barber decision, the nature of the Appellant's complaint was that he was discriminated against in the level of benefits he was to receive or whether he was discriminated against in relation to his access to the relevant scheme.
4. The Tribunal's decision is set out in paragraph 15 of their reasons: -

"The only difference between the applicant and a female nurse lies in the calculation of the level of benefits to which he is entitled if he chooses to retire at age 55."

5. On that basis they decided that this was a Barber case and the Appllant had no claim. However earlier in that paragraph they had recorded a concession by the Respondents;

"… that the discrimination to which the Applicant would have been subject prior to the date of the Barber judgment was discrimination concerning access to a special Scheme which confers entitlement to additional benefit because, at that time, all male nurses were excluded …"

6. In Mr Algazy's skeleton argument he has pointed out that the question is whether or not the Tribunal fell into error in not deciding the crucial point in the case as at 17 May 1990, the date of the Barber decision. It seems to us that that it is clearly arguable that the Tribunal misdirected itself in deciding which line of authority to follow, perhaps because of choosing the wrong date at which to apply the test. In those circumstance we direct that this appeal should proceed to a full hearing.