United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS E MELVILLE (of Counsel) Ms C S Tailby (Ref:CT/LH/DAVITT/16.412) Messrs Pattinson & Brewer Solicitors Transport House Victoria Street Bristol BS1 6AY
For the Respondent	MR J LOFTHOUSE (of Counsel) Mr A Turek (Ref: 1.98/5376E/AT) The Treasury Solicitor Queen Anne's Chambers 28 The Broadway London SW1H 9JS


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have here today an application in the matter Helen Davitt –v- HQ SCE (MOD) Respondent. The position is that on 5 August 1998 an IT1 was received from Helen Davitt against the Respondent claiming "equal pay", as it seems, for a period from 1 April 1994 down to 31 March 1998 (but I am not entirely sure of the period and it does not, perhaps, matter). She was claiming some £14,000 odd pounds.
2. On 11 September 1998, the Respondent put in an IT3. That was amended; there were amended grounds of resistance on 22 December 1998 and the question was then raised of the dates of Helen Davitt's employment: was she employed from 1 September 1992 to 30 September 1997? A question of jurisdiction was raised as to whether an application could be heard given that it had not been made, as was claimed, within six months prior to the lodging of the IT1.
3. That point seems to have been overtaken by a later point and ultimately there was a preliminary hearing on 29 March 1999 on a different question. On 14 April 1999 the decision was sent to the parties and the unanimous decision was in two paragraphs; the first paragraph said this:

"1 Pursuant to section 2(5) of the Equal Pay Act 1970, the Applicant's claim for a payment by way of arrears of remuneration or damages is limited to the period of two years before 5 August 1998, the date of presentation of her Originating Application .

2 The hearing of the Applicant's equal pay claim is adjourned in accordance with the terms of the Order made today by this Tribunal.

4. On 20 May of last year there was a Notice of Appeal lodged. Since then the case Levez has been heard and reported. It was actually reported in the Employment Appeal Tribunal in January 2000, well after the Notice of Appeal and, of course, even longer after the hearing.
5. Levez in the Employment Appeal Tribunal indicates that a deliberate deception by the employer, in relation to other persons' rates of pay for example, is not the only route by which Section 2(5) of the 1970 Act can be disapplied or avoided. But in the case at hand, at any rate on my reading of the decision, there is not only no finding as to deliberate deception, there is no finding as to involuntary deception and there is no finding, as such, even as to the withholding of information or a failure to give information.
6. At the time the Tribunal heard the matter it could well have taken the view that simply to decide there was no deliberate deception sufficed. But since then the Levez case in the Employment Appeal Tribunal has indicated, as I have mentioned, that that is not the only gateway to disapplication. Quite what the evidence was, at the Tribunal, of course, is not clear. So in terms of law, it is unclear, as it seems to me, in relation to the Tribunal's findings, whether such parts of Levez in the Employment Appeal Tribunal as talk about deception, involuntary or deliberate, would disapply Section 2(5).
7. But, as it seems to me, there is no reason why the case should not proceed upon an agreement between the parties that on the facts, as the parties believe them to be, Levez in the Employment Appeal Tribunal would, in the case at hand, require Section 2(5) to be disapplied or to be of no relevance.
8. Now the parties have laid out in front of me a proposed Consent Order but I would prefer that it should be redrafted to say something on these lines; exactly how it is put I leave to the parties but I shall describe how I see it ought to go.
9. First of all, it ought to recite that in the light of Levez 2000 ICR 58 EAT, heard and reported after the decision of the Employment Tribunal and in the light of the facts as the parties respectively believe them to be, the parties agree that the IT1 may proceed to a hearing on the basis that Section 2(5) does not operate to disentitle Miss Davitt in respect of any period or part of her claim.
10. In so saying it should be made clear in the recital to the order that the way the order is formulated is not to forbid Miss Davitt and her advisers from raising other arguments such that it would be inappropriate for the main hearing to proceed.
11. Secondly, the order should say that accordingly both parties agree, subject to the other point that I have just mentioned, that the adjourned hearing referred to in paragraph 2 of the Decision sent to the parties on 14 April 1999 should proceed on the footing that paragraph 1 of that decision is of no effect.
12. Such a recital is then to be followed by an order that by consent, the Appeals Tribunal in the premises sets aside paragraph 1 of the Decision of the Employment Tribunal. That is all the formal part of the order need say. The parties should between them (and it would be best if Miss Melville did a draft, which she then cleared with Mr Lofthouse for the Respondent) agree a draft between themselves, implementing the suggestion that I made, and I will then be able to endorse the draft and make it then formally become an order, without, I would very much hope and expect, any further attendance by either side.
13. If there is any unclarity at what I have indicated, well then, I hope Counsel will mention it now, but, subject to that, I will simply direct that the parties draw up a new form, in the manner that I have indicated, with a view to my simply endorsing it, without any further form of attendance being necessary, and it will then, and only then, become an effective order.