United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants

MR PAUL EPSTEIN (ELAAS Counsel)

SUMMARY

Equal Pay Act; Article 141

(1) Adjourned part-time workers' pensions cases for a judgment by the Chairman on the Claimants' claims that they were entitled to argue a "concealment case" under the Equal Pay Act 1970 s.2ZA and Levez v T H Jennings (Harlow Pools) Ltd [1999] IRLR 36 ECJ. English v Emery Reimbold & Strick Ltd [2003] IRLR 710 applied.

(2) Guidance given on EAT procedure on handling appeals in this group litigation: Preston and others v Wolverhampton Healthcare NHS Trust and others [2004] ICR 993.


 


HIS HONOUR JUDGE MCMULLEN QC

1. This case arises under the unusual jurisdiction provided by the amendments to the Equal Pay Act 1970 in situations which are described by the statute as a "concealment case"; in other words a case where a woman part-time worker's entitlement to claim in respect of exclusion from a pension scheme has been affected by concealment by her employer of a material fact.
2. The two appeals before me are part of a trio raised by former employees of Cambridge Regional College ("the College"), who were engaged as part-time workers, and who subsequently accepted contracts to "go permanent" on or about 1 September 1995. The cases arise as part of the Preston litigation: see Preston and others v Wolverhampton Healthcare NHS Trust and others [2004] ICR 993 (EAT), in which I gave a number of judgments relating to how such claims should generically be treated.
3. At the preliminary hearing of this case, which was ordered by Burton P, I have considered whether or not a full hearing should be conducted. I have written responses, pursuant to the Practice Direction, from the College, but not from the Secretary of State for Education, who is also a party.
4. The proceedings at the Employment Tribunal were conducted on the papers by a Chairman, on an application by the College that the two claims should be struck out under rule 18(7)(b) of the Employment Tribunal Regulations 2004. I hear the appeals as a judge alone: Employment Tribunals Act 1996 section 28(4). The Claimants were found to have worked on a number of different contracts, which they said were a stable employment relationship. The Chairman was alert to the fact that unless there were such a stable employment relationship, or this case were a concealment case or a disability case, the time for bringing the complaint is six months from the ending of the first stable relationship. That is an expression of the way in which the Equal Pay Act was amended by the Equal Pay Act 1970 (Amendment) Regulations 2003, so as to conform to the ruling of the European Court of Justice in Levez v T H Jennings (Harlow Pools) Ltd [1999] IRLR 36, which was a case of deliberate concealment from a woman Claimant of a material fact, relating to the higher pay of a male comparator in the same employment.
5. The College contended that any stable employment relationship expired in 1995, and proceedings were not commenced until 13 August 2004. The stable employment relationship was said to relate to a series of contracts, of an hourly-paid nature, and those contracts came to an end, and the relationship came to an end, when the Claimant in each case was made permanent and pensionable, and joined the pension scheme. The Chairman ruled that each claim was out of time. Mr Epstein appearing today under the aegis of the ELAAS rota, at my invitation has considered the way in which a claim may be raised under the concealment provisions. He has expressly abandoned the primary ground of appeal, which is that the Claimants were involved in a stable employment relationship, spanning both temporary hourly-paid, and then full-time, permanent, pensionable employment, since he recognises that the Preston judgment is against him on that point. Nor does he contend that the Claimants have a ground of complaint that they did not have a hearing, while Mr Douglas (the third case) did. These grounds are dismissed on withdrawal. I make it clear in the guidance which follows (and in the absence of argument) that that procedure seems to me fair and proportionate case management in this group litigation.
6. However, both of the cases on appeal contend that the concealment provisions apply. These are as follow, and enable a Claimant to bring a claim long after the six-month period in section 2(4) of the Equal Pay Act has expired:

"(2) In this section –

"concealment case" means a case where -

(a) the employer deliberately concealed from the woman any fact (referred to in this section as a "qualifying fact") -

(i) which is relevant to the contravention to which the proceedings relate, and

(ii) without knowledge of which the woman could not reasonably have been expected to institute the proceedings, and

(b) the woman did not discover the qualifying fact (or could not with reasonable diligence have discovered it) until after -

(i) the last day on which she was employed in the employment, or

(ii) the day on which the stable employment relationship between her and the employer ended,

(as the case may be)"

7. The codification of the stable employment relationship appears also in section 2ZA (3), but I need not rehearse it.
8. The contention of Mr Epstein is that the claims should not have been struck out since, on its face, each raises a complaint that the Claimant was either misled by the College or was led into a reassurance that she need not apply to an Employment Tribunal. Mrs Larthwell, on 29 October 2004, contended that in September 1995 she had been given a statement in accordance with statutory requirements, indicating that her period of continuous employment began in October 1989, and that the period of continuous employment in local government would be recognised for conditions of service, such pensions. A similar representation in writing was made to Mrs Thacker, and, in addition, a number of other factual representations appear to have been made. Mrs Thacker's husband also entered into discussions with the College in 1995, and kept a note of the College saying that the Claimant need not make a claim because the Human Resources Department would deal with the matter and keep her informed.
9. Those two matters indicate, on the face of the papers, that a concealment case could be made at least for the purposes of conducting a full hearing before an employment tribunal. I have been referred to various passages in the judgment of Levez (see paragraphs 11, 27, 31, 32 and 34) indicating that the case was concerned with deliberate misrepresentations. But, as Mr Epstein points out, it may be reasonably arguable that a Claimant should not be shut out if reassurance is given to her that she need take no further steps in the case, or if a statutory statement, under section 1 of the Employment Rights Act 1996, indicates that she will have continuity of employment for pension purposes. It seems to me that such a representation to a woman who had not been eligible to include her previous employment for pension purposes, when she became, as she did in 1995, permanently employed, might well constitute a form of representation covered by Levez, and thus article 141, requiring disapplication of section 2(4) of the Equal Pay Act.
10. So minded, I would have allowed this case to go to a full hearing. But an alternative course commended itself to me, and to Mr Epstein following consultation with his clients, which is this: under the powers which I have in Burns v Consignia plc [2004] IRLR 425, and English v Emery Reimbold & Strick Ltd [2003] IRLR 710, I will ask the Tribunal Chairman to consider points made in the documentation in this case, which have not been the subject of a reasoned judgment. For the purposes of a strike-out, it must be assumed that what the Claimant says in her correspondence is capable of being made good at a full hearing. It seems to me that the Chairman, having recognised that there are concealment cases, has failed to deal with, and to give a judgment on, whether or not the Claimants' cases reveal sufficient material to warrant a full hearing, or should be struck-out as not disclosing a concealment case. There may also be issues as to whether or not the Amendment Regulations took effect so as to give the Claimants such a right at the relevant time. It must also be borne in mind that neither Claimant expressly referred to this provision in the correspondence showing cause why her claim should not be struck-out. But it seems to me that, since the Chairman did recognise that a claim could be made under section 2ZA in a concealment case, and since there is at least a vestige of such a complaint being made in the correspondence, the Chairman ought to have dealt with it.
11. The most effective way of dealing with this would be to adjourn and remit this matter for further reasons by the Chairman, and if necessary, to come back in front of me. The Respondents, both the College and the Secretary of State, will have an opportunity to respond to this afresh. As part of the English v Emery Reimbold directions, I will direct that the Secretary of State lodge a Response. The Chairman will decide whether she is content for this matter to be dealt with, at the College's behest, as a strike-out application on the papers, or whether she, or another chairman, should hear the case at a full hearing, with all parties represented. This indeed took place in the third case at the College (Mr Douglas) which was heard by a Chairman Mr B G Mitchell, and where representation was provided by a solicitor on behalf of the College, although it has to be said the result was the same. Nevertheless, Mr Mitchell did not consider whether this was a concealment case, although it seems to me that paragraph 12 of his judgment does indicate some sympathy, by the College, towards the Claimant.
12. In those circumstances, this case will be remitted to the Chairman, in accordance with the directions I have given above. I would very much like to thank Mr Epstein for his careful and constructive approach to this morning's proceedings.

Case management at the EAT

13. These two cases also indicate an opportunity for dealing with a large number of the Preston-related cases, and I will now give guidance for the handling of these cases. I do so against a background, in these two cases, of grounds of appeal complaining that the two Claimants had not had a hearing, whereas Mr Douglas did have a hearing, before all three of their cases were struck-out; and thus there was, although it is not now pursued, an appeal based upon some disparity of treatment. I hope that the guidance I give below will shed some light upon that approach. I have been able to consult the relevant judiciary in England and Wales and Scotland.
14. These cases are part of the Preston v Wolverhampton Healthcare NHS Trust [2004] ICR 993 (EAT) litigation, and are being handled throughout the UK according to that ruling. The first Originating Applications were lodged in 1994, and continue to be received, albeit in very small numbers. Most notices of appearance from the main employers were stayed. In the vast majority, these old cases are covered by the earlier Employment Tribunal Regulations, and the components of a notice of appearance then were less rigorous than those for a response now in the 2004 Regulations. Employers have been directed to submit schedules, listing those cases which they claim must fail, following the various Preston judgments. We at the EAT will recognise this, and also give effect to the proportionate decision in case management, taken in the employment tribunals, not to call on all Respondents to submit a response unless now sought.
17. As I understand it, there are three stages to the process in public sector cases (the problem may also arise in large private sector cases as well but that depends on whether the nominated chairman in the Region responsible for managing cases follows the public sector model):

17.1. The Respondent submits a schedule to the tribunal office listing the claims which are said to fail and giving brief but sufficient reasons why the claims should be struck out. In the great majority of non-NHS cases, this has been done and the schedules processed. There remains a small number of schedules to process and an even smaller number yet to be received.  For most public sector Respondents, this involves at least tens and more frequently hundreds of cases. For the NHS, which is being handled centrally by the NHS Pensions Agency, it is thought the number is well over 8,000. The NHS schedules have been received and are being processed.

17.2. A letter is sent inviting the Claimant to show cause ie give reasons why the claim should not be struck out, for it appears to fall outside the rulings in Preston.

17.3. The Claimant replies and if the reply is deemed inadequate the claim is ultimately struck out by a Chairman without a hearing.  In our experience at the EAT, it is usually a Claimant who has replied to the show cause letter who appeals against the strike out judgment, but that does not necessarily follow.  The Claimant's reply to the show cause letter should be copied to the Respondent whose further views will be sought.  Its reply in letter form can be taken as an amendment to the response in the schedule.

17.4. This process applies only to the old claims. A Respondent to claims which have been received after it has filed a schedule should be directed to enter a response in the conventional way under the 2004 Regulations, and so the problem will not arise in the newer cases

18. In a part-time worker's pension case on appeal to the EAT, where the Employment Tribunal proceedings were commenced before 1 October 2004:

18.1. When a Notice of Appeal is sent to the EAT against a judgment striking out the claim or part of it, and the Respondent has not entered a formal response or notice of appearance, the Claimant will be treated as having lodged with the EAT the Respondent's Response if, when filing the Notice of Appeal, there is included

18.1.1. the relevant extract from the Respondent's schedule;

18.1.2. the Employment Tribunal's show cause letter; and

18.1.3. any subsequent correspondence from the Claimant and the Respondent

18.2. If the Respondent's schedule has not been included, the Employment Tribunal will be asked to provide a copy of the relevant page of it. This may sometimes also happen with Originating Applications as they were presented long ago and may have been mislaid.

18.3. In an appropriate case, and if necessary using the power in English v Emery Reimbold & Strick Ltd [2003] IRLR 710, the sift Judge at the EAT may direct the Respondent to enter a Response eg if its case is not sufficiently clear or it the Claimant's reply sets out matters which require a further response.

18.4. When the sift judge sees this, s/he may think the Employment Tribunal should have an opportunity to address it and may invite the Claimant to apply to the Employment Tribunal for a Review, albeit out of time, based on this new material. The decision whether to grant any such application is for the Chairman or the Employment Tribunal as appropriate.

18.5. Otherwise, all of the material goes into the EAT sift for a decision in accordance with Practice Direction paragraph 9.