United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M A BISHOP (of Counsel) The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS
For the Respondent	Respondent in Person


 


JUDGE PETER CLARK

1. In May 1990, the Applicant, Mrs Wood, commenced employment with the RAF as a Mechanical Trade Driver. She signed up for 9 years.
2. In July 1991 she discovered that she was pregnant. Ultimately she gave birth to twins. On 31 August 1991 her employment terminated.
3. It was not until May 1999 that she presented an Originating Application to the Employment Tribunal, complaining of unfair dismissal on the ground of sexual discrimination. It was her case that, having been seen by the medical officer, who confirmed the pregnancy, she was given a stark choice; abort the foetuses or leave the RAF. She took the latter option.
4. The Ministry of Defence was named as Respondent to the proceedings. They resisted the claim on the ground, among others, that the claim was well out of time. A Preliminary Hearing was arranged before an Employment Tribunal sitting at Bristol on 27 August 1999 to determine the jurisdictional questions.
5. The Employment Tribunal, by a decision with extended reasons promulgated on 15 September 1999, accepted the Respondent's submission that the claim of unfair dismissal should be dismissed on the ground that members of the armed forces were excluded from statutory unfair dismissal protection.
6. As to the complaint of unlawful sex discrimination, the Employment Tribunal accepted that the claim was out of time by some 7½ years, but exercised their discretion under section 76(5) of the Sex Discrimination Act 1975 to allow the claim to proceed to a full hearing on the ground that it was just and equitable to do so for the reasons which they gave.
7. Against that part of the Employment Tribunal decision the Ministry of Defence appealed by a Notice dated 19 October 1999. That Notice raised the following points:

(1) They asked the Employment Appeal Tribunal to exercise its discretion to admit further evidence, discovered after the Tribunal hearing, to the effect that in September 1990 the Ministry of Defence policy changed from one of compulsory discharge on the grounds of pregnancy to a policy which conferred the right to maternity leave and the right to return to return to work.

No evidence to that effect was placed before the Employment Tribunal; instead the Tribunal had been shown Queens Regulations 607(10)(c) and noted that paragraph 629 of the regulations provided for compulsory discharge where an airwoman proceeded to full term. They also saw the Applicant's discharge certificate. They found that so far as liability is concerned in the sex discrimination case, the position was clear: "abort your pregnancy or continue in employment" (Reasons paragraph 24).

(2) They contended that the Employment Tribunal had erred in law in finding that the Respondent would suffer no prejudice if the sex discrimination claim was allowed to proceed (the prejudice point).

(3) They challenged the Tribunal's finding at paragraph 11 of their reasons that it was common ground between the parties that the Applicant could stay and have an abortion or she could leave and her employment would terminate.

(4) They challenged as perverse the Tribunal's finding that a 7½ year delay in bringing her complaint was acceptable (the delay point).

(5) They were wrong to reserve the full merits hearing to the same tribunal.

8. That Notice of Appeal was settled by Counsel, Carolyn D'Souza, who had represented the Respondent before the Employment Tribunal.
9. The appeal came on for preliminary hearing before a division of the Employment Appeal Tribunal presided over by Mr Commissioner Howell QC, sitting on 21 January 2000. Miss D'Souza appeared on behalf of the Ministry of Defence on that occasion, having first lodged a Skeleton Argument.
10. No judgment was delivered that day, but we see from the order of the Employment Appeal Tribunal that the appeal was permitted to proceed to a full inter partes hearing on the limited grounds (sic), of the Employment Tribunal's approach to the question of prejudice suffered by the Ministry of Defence. Permission was granted to the Ministry of Defence to file an amended Notice of Appeal within 14 days. An amended Notice of Appeal dated 31 January 2000 and settled by Miss D'Souza was duly lodged. It raised the prejudice point and the delay point only.
11. Today Mr Bishop appears to prosecute the appeal on behalf of the Ministry of Defence, Mrs Wood appears in person.
12. Preliminary Hearings

The purpose of the preliminary hearing procedure is to act as a sift. The division of the Employment Appeal Tribunal at a preliminary hearing must decide, looking at the grounds of appeal, supplemented by skeleton argument and oral submissions, which, if any of those grounds raise arguable points of law that ought to proceed to inter partes hearing. There are three options:

(1) To dismiss the appeal then and there on the basis that no arguable point of law is raised.

(2) To allow all grounds to proceed on the basis that each is arguable.

(3) To allow the appeal through on one or more specified grounds, the remainder being dismissed.

13. Mr Commissioner Howell's division took the third course in this case. Only the prejudice ground was allowed to proceed. There has been no appeal by the Ministry of Defence against that decision.
14. The Appeal

Before us Mr Bishop has sought to widen the attack on the Tribunal's decision beyond the single ground permitted to proceed, the prejudice point. We shall not permit him to raise arguments which, variously:

(a) Involve points not argued before the Employment Tribunal Jones -v- Governing Body of Burdett Coutts School (1998) IRLR 521.

(b) Were not taken in the original Notice of Appeal, and

(c) Were dismissed at the Preliminary Hearing.

15. Turning then to the points which he has advanced before us by reference to his skeleton argument:

(i) Prejudice. The Tribunal was entitled to conclude on the evidence before them that the destruction of documents due to the passing of time did not prejudice the Ministry of Defence in defending the claim on liability for the reasons given at paragraph 24 of their reasons.

(ii) The Tribunal's balancing exercise. This point was not taken in the Notice of Appeal, nor the amended Notice.

(iii) Prejudice in relation to the argument on compensation if the Appellant succeeds on liability. We are quite satisfied, as Mrs Wood tells us without contradiction by Mr Bishop, that this point was not raised before the Employment Tribunal.

(iv) The Tribunal's approach to a possible negligence action by the Applicant against the solicitor who advised her in 1995. This point was not taken in either the Notice of Appeal or the Amended Notice of Appeal.

(v) General perversity. Again, this ground does not appear in either the Notice of Appeal or Amended Grounds of Appeal.

16. Finally, and for the avoidance of doubt, we are satisfied, applying the approach of Mr Justice Phillips in Hutchison –v- Westward Television Ltd (1997) ICR 279; IRLR 69, that this was a decision for the Employment Tribunal on the particular facts of the case and not for us. We are not persuaded that the Ministry of Defence has discharged the heavy onus of establishing an error of law on the single ground, prejudice as it was argued before the Employment Tribunal, for the purpose of entitling us to interfere with the Tribunal's wide exercise of discretion.

In these circumstances, we shall dismiss this appeal.