Appeal No. EAT/909/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 13 July 1995

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MISS A MADDOCKS OBE

	MRS M E SUNDERLAND JP

MR J HOWARD	APPELLANT

MINISTRY OF DEFENCE	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	IN PERSON

For the Respondents	MR A MCNAB 
(of Counsel)
Barbara Duda
Treasury Solicitors
Queen Anne's Chambers
28 Broadway
London
SW1H 9JS

	MR JUSTICE MUMMERY (PRESIDENT):    This is an appeal from the decision of the Industrial Tribunal held at Bristol on 15 August 1994.

	The Tribunal unanimously decided to dismiss an application by Mr J.A. Howard against the Ministry of Defence.  The claim by Mr Howard is set out in his Originating Application presented to the Industrial Tribunal on 23 May 1994.  

	The essence of his complaint is stated in these terms in box 10:

		"The MOD by refusing to grant a pension and a war pension (death was the result of injuries received in Service) have failed to treat G.A. Howard and her husband with equality as to sex and equal pay.  Sex in that pensions to spouse should be paid.  Equal pay in that she should have had the opportunity to up grade her pension from _ to ½ of pay. .... ."

	That summary of the claim will make more sense when considered against the factual background to the claim and the contentions advanced by Mr Howard.  Mr Howard was disappointed with the Tribunal's dismissal of his claim for the reasons notified to the parties on 24 August 1994.  

	On 29 September 1994 Mr Howard served a Notice of Appeal setting out the grounds on which he submitted that the Tribunal's decision contained errors of law.   

	Mr Howard presented his case in person with the help of a Skeleton Argument which conveniently sets out (under various headings) the basis of his arguments on the  Tribunal's decision.  

	Mr McNab appeared for the Ministry of Defence.  Before deciding whether there is any error of law in this decision of the Industrial Tribunal, it is necessary to summarise the facts, which were not in dispute.  

	Mr Howard was married to Gwendolen Howard (nee Sergant).  She was born on 17 March 1926.  On 24 July 1953 she joined the Womens Royal Army Corps as a private.  On 9 September 1953 she was commissioned as a Second Lieutenant.  She married Mr Howard (then retired and formerly a Lieutenant Commander in the Navy) on 2 June 1973.  
	On 17 May 1973 Major Howard submitted a request to resign her commission on marriage, which was accepted.  She left the Service on 1 September 1973 on retired pay of £1,208.04 per annum, plus a terminal grant of £3,624.12 based on 20 years 40 days' reckonable service.  

	On 5 April 1974 Major Howard applied to commute half her pension.  That commutation was approved on 25 June 1974.  The sum raised was £8,178.43 and the annual rate of pension was reduced to £604.02.  Sadly, on 1 June 1979 Major Howard died of breast cancer.  On 5 June 1979 Mr Howard wrote to the Paymaster General, seeking a dependant's pension under the Armed Forces Pension Scheme, described in the documents as the "AFPS".  Major Howard was a member of the scheme.  On 23 July 1979 Mr Howard made a request for a dependant's pension to the Army Pensions Office.

	The Industrial Tribunal set out in their decision, a summary of subsequent actions they made by Mr Howard in relation to this matter.  His claim to the Army Pensions Office was rejected by letter on 26 July 1979 on the ground that there was no provision within the scheme for a payment of a widower's pension to the male survivor of the deceased servicewoman, although there was provision for payment of such a pension to the female survivor of a deceased serviceman.

	Following that refusal in July 1979, Mr Howard entered into further correspondence with the Ministry of Defence.  That has continued down to the present day.  In the correspondence he continued to press for a widower's pension.  The Tribunal recorded that Mr Howard had written to enlist the support of Mrs Thatcher (as she then was).  He has written to the Minister of Defence, the Defence Select Committee, the leaders of the main opposition parties and to the Colonel Commandant of his wife's old regiment.  He has also taken advice from the Equal Opportunities Commission.  Although the pension scheme was amended in October 1987 to make provision for the payment of widowers' pensions to the survivors of servicewomen serving on 1 October 1987, that scheme (as amended) makes no provision for retrospective entitlement.  So, despite all Mr Howard's efforts, no widower's pension has ever been forthcoming.  

	Almost all the correspondence shown to the Tribunal related to his claim for a widower's pension.  It was not until about Autumn 1990 that he first raised the possibility of the payment of a war pension.  It is not necessary on this appeal, to examine that aspect of the case since Mr Howard has not pursued that matter further at this stage.  

	The Tribunal then referred to the submissions made by Mr Howard; they were repeated by him on this appeal.  He claims that the refusal to afford equality of treatment to servicemen and servicewomen over the provision of survivors' pensions is, and always has been, discriminatory.  His argument over the years has evolved into this simple proposition: that pension provision is "pay" within Article 119 of the Treaty of Rome; and that point was confirmed by the European Court of Justice in the case of Barber v Guardian Royal Exchange Assurance Group [1991] QB 344.  The Ministry of Defence should now compensate his wife's estate for unlawful refusal on their part to comply with their obligations under European Community Law to afford equal treatment in matters of pay.

	The Tribunal's conclusion on the claim was that he had no entitlement under Article 119 by reason of a number of temporal limitations.  It was impossible, having regard to those temporal limitations, for him to bring his case within the limited exceptions to those temporal limitations.  The Tribunal concluded by dismissing the applications for these reasons stated in paragraph 15:

		"15  It is not for us to advise the applicant as to what he should have done, or might have done.  We are simply bound to give effect to the law as it has been enunciated by the European Court of Justice, and we are unanimously of the view that the applicant has not `raised an equivalent claim under the applicable National Law' prior to 17 May 1990 in respect of his claim for a widower's pension.  In those circumstances, it seems to us that the temporal restriction imposed by the cases of Barber and Ten Oever applies and that the applicant is unable to claim equality in the provision of pension entitlement arising out of Major Howard's service between 1953 and 1973. .... ."

	The arguments advanced by Mr Howard on this appeal are set out in his Notice of Appeal and they are amplified in his Skeleton Argument.  His argument is that a survivors pension is pay within the meaning of Article 119.   He claims equality of treatment in relation to survivors pension.  The Tribunal had to decide whether the claim was barred by the limitation introduced in the Barber decision which provided that equality of treatment prior to 17 May 1990 could only be claimed by those who, before that date, had "initiated legal proceedings or raised an equivalent claim under the applicable national law". 

	Mr Howard's first submission was that the Tribunal erred in law in their interpretation of that limitation.  The Tribunal stated in paragraph 14 of their decision that there was no authority on the question of what constituted an "equivalent claim".  They said at paragraph 14:

		"14  ....  it seems plain that what the European Court had in mind was legal proceedings or a claim equivalent to legal proceedings and that, in our unanimous judgment, must involve more than the simple assertion of a right in correspondence.  In the absence of any authority, it seems to us that what must be envisaged is the making of a claim to some sort of independent third party who has the power to make a determination, binding upon both sides, as to whether the applicant is entitled to the remedy which he seeks or not.  The European Court has not given examples of the sort of forum it envisages in which an `equivalent claim' can be brought, but an administrative tribunal, such as the Pensions Appeal Tribunal, might be an example." 

	Mr Howard submitted that this is an unduly restrictive interpretation of the judgment in Barber.  It presupposes the existence of a third party to whom he could reasonably be expected to submit a claim.  That ruling in Barber does not deal with the situation which he says prevailed here, where there is no existing procedure for bringing a claim or where it would be excessively difficult to bring a claim.  He was specifically barred from making an appropriate claim prior to 17 May 1990 because, under section 85(4) of the Sex Discrimination Act 1975, Armed Forces were exempt from the provisions of that Act.  

	In the absence of a legal remedy, he submitted that he took all reasonable steps to establish his rights.  The Tribunal erred in law in holding that his actions over the years fell short of making an equivalent claim within the meaning of the Barber decision.  The rationale for the introduction of the exception to the temporal limitation was given in paragraph 44 of the Barber decision: 

		"It is appropriate to provide for an exception in favour of individuals who have taken action in good time in order to safeguard their rights".

	Mr Howard submitted that no reasonable Tribunal could have found that he fell outside the intended scope of the exception to the temporal limitation.  He argued that the exemption of the Armed Forces from the Sex Discrimination Act by section 85(4) was unlawful.  The effect of the Tribunal decision that the Ministry of Defence were protected against a sex discrimination claim by means of a discriminatory rule.

	In his Skeleton Argument, Mr Howard elaborated on the submissions.  He discussed the background to questions of equal pay in the Forces by reference to the setting up of the review of Forces Pay and the Armed Forces Review Body and to ministerial statements in the House of Commons.  He referred to the reviews made from time-to-time by that body.  Equality of Forces pay was established in 1990 following on a statement made by the Minister in 1969.  The pay reviews in 1972 and 1973 strengthened the implementation of equal pay.  By reason of the case in Pepper v Hart the Tribunal is entitled to look at Parliamentary statements made by Ministers.  Those supported his claim.

	As to the initiation of proceedings he elaborated his arguments in relation to the Barber case.  He repeated his contention that the Tribunal had erred in law in their restrictive interpretation of the limitation in Barber.  He emphasised the point that there was no applicable procedure in national law in which he could have used to bring legal proceedings or make an equivalent claim.  He said this in paragraph 5 of his Skeleton Argument:

		"5.1.  There is no applicable written National Law or procedure for retired officers and ratings.  Serving Officers can make their representations through their commanding Officers.  Where no Commanding officer exists, in writing to the Secretary of State if in say MOD posts there is no direct equivalent to a Commanding Officer."

		5.2. .... .

		5.3.  It is impossible to make an application for a pension till the employee has retired or died in the case of spouses.

		5.4.  That it is an offence under the Treaty of Rome for any member state to make it so difficult as to be practically impossible for a citizen to obtain redress of their grievances.  .... .

		5.5.  It is an established fact that pensions are part of pay and earned during the employee's time in employment.  They become part of a person's estate even though they may have limitations as to their disposal. .... ."

	In paragraph 7 of his Skeleton Argument he invited this Tribunal to make the following rulings.  First, a ruling that, instead of referring the matter back to the local Tribunal, we should make a judgment on this question, because it was a matter of national importance affecting all retired servicemen and servicewomen.  Secondly, he wants a ruling that he did make an application in accordance with the national custom of the United Kingdom.  Thirdly, he wants a ruling in his favour that he made an application in accordance with national custom, as stipulated by the European Court of Justice.  Finally, he wants a ruling that the Government has acted unlawfully under Article 2 and 5 of the Treaty of Rome in making the obtaining of his rights so difficult as to be virtually impossible.  He requests an award of damages.  

	All those points were forcefully pressed by Mr Howard.  We have considered those arguments in the light of the response by the Secretary of State.  The conclusions we have reached are as follows.

	There are two legal points in the appeal:  first, whether the Industrial Tribunal made an error of law in its interpretation of an "equivalent claim" in national law, as explained in Barber which defines the category of persons exempted from the temporal limitations imposed in that case; secondly whether section 85(4) of the Sex Discrimination Act 1975, which exempts Armed Forces from the provisions of that Act, effectively protects the Ministry of Defence against claims for discrimination and is therefore unlawful.

	Our conclusion is that Mr Howard's claim fails for the following reasons.  First, even if he had taken steps between 1979 and 1994 which could be construed as the initiation of legal proceedings or the raising of an equivalent claim within Barber, the direct effect of Article 119 of the Treaty cannot be relied upon by Mr Howard in order to claim entitlement to an occupational pension acquired in connection with periods of service by his wife, served prior to the date of the judgment in Defrenne (No.2) given by the ECJ on 8 April 1976, reported in [1976] ECR 455.

	For that reason alone, Mr Howard is not entitled to make the claims to a widower's pension.  His wife's service ceased in August 1973.  The position in Defrenne is clearly stated in the ruling in paragraphs 69 to 75 of the Court's decision under the heading "The temporal effect of this judgment".  The Court held that, except as regards those who had already brought legal proceedings or made an equivalent claim, the direct effect of Article 119 could not be relied upon in order to support claims concerning pay periods prior to the date of the judgment.

	Secondly, the direct effect of Article 119 cannot in any case, be relied upon in order to claim entitlement to an occupational pension acquired in connection with period of employment served prior to 1 January 1973, the date when the United Kingdom acceded to the Treaty.  The United Kingdom joined the EEC with effect from 1 January 1973.  Article 119 became directly effective and individuals acquired community rights on that date, but the direct effect cannot be relied upon to claim entitlement to an occupational pension acquired in connection with periods of employment before the date of Accessation.

	Thus, Article 119 cannot be relied upon in order to claim entitlement to an occupational pension acquired in connection with periods of employment served prior to the date of the judgment in the Barber case, 17 May 1990.  

	The only exception to that rule is in the case of workers or those claiming under them who have before that date initiated legal proceedings or raised an equivalent claim under the applicable national law.  That exception does not apply in this case because Mr Howard did not initiate legal proceedings until 23 May 1994.  The Ministry of Defence submitted, and we agree, that the Tribunal's approach to this question was correct.

	The first date on which legal proceedings were initiated was 23 May 1994 when the application was made to the Industrial Tribunal.

	We have considered the possibility that Mr Howard could bring himself within the exception of an "equivalent claim in national law".  Mr McNab was unable to point to any clear authority of the European Court of Justice or of the National Courts on what is meant by that expression.  His submission, which we accept, was that in order to bring yourself within that phrase you have to do more than simply make a claim.  It has to be a claim which is equivalent to legal proceedings.  The judgment in Barber envisages a situation in which a dispute between two parties is raised before or put before an independent third party, such as a Tribunal, Official or a Court with power to determine the dispute conclusively between the parties in dispute.  

	The expression "an equivalent claim" is intended to be a "catch-all"  provision applicable to any State within the European Union.  There may be, for example, cases where proceedings are commenced in an administrative tribunal or by way of arbitration which may not be technically described as "legal proceedings", but would fall within the expression a "claim equivalent to legal proceedings".  Mr McNab referred to passages in the opinions of the Advocate Generals in Ten Oever [1993] IRLR 601 (paragraphs 6 and 51) and in the opinion of the Advocate General in the case of Beune (28 September 1994) (C-7/93) (paragraph 55).  They add little to the analysis of the Tribunal in their decision. 

	We agree that, the expression "equivalent claim in national law" does not extend to a person who only asserts a claim.  There must be something which is equivalent to legal proceedings.  The assertion of a claim is not an equivalent.

	The Tribunal's decision is correct on this point.  Accordingly Mr Howard is not entitled to pursue this matter.  In brief, he is out of time by operation of the decision in Defrenne (2) and of the decision in Barber.  It was confirmed in the Ten Oever case that, by virtue of the judgment in Barber, the direct effect of Article 119 might be relied upon for the purpose of claiming equal treatment in the matter of occupational pensions, but only in relation to benefits payable in respect of periods of employment subsequent to 17 May 1990, subject to the exception in favour of those or those claiming under them, who have before that date initiated legal proceedings or raised an equivalent claim under the applicable national law.

	Mr Howard has been unable to bring himself within that exception.  It was also made clear in Beune that the exception to the temporal limit in Barber  case, did not enable a party to invoke rights in respect of periods of service before 8 April 1976.  The decision in Defrenne remained effective.

	There were other points in the case where there was no real dispute, eg that "pay" is given a wide definition in Article 119.  It was accepted by the Ministry of Defence that a widower's pension under the AFPS which governed Major Howard's pension constituted "pay".  That does not answer the real problem in this case that the claims are out of time.

	That disposes of the first point of the appeal.  On the second point, based on section 85(4) of the Sex Discrimination Act, we agree with Mr McNab that this is not relevant to the claim.  Section 85(4) provided (in its unamended form) that the provisions of the 1975 Sex Discrimination Act did not apply to service in the Armed Forces.  The provisions are irrelevant.  Mr Howard's claim is based on Article 119, which is conceded by the Ministry of Defence to confer a directly effective community law right.  Section 85(4) does not preclude Mr Howard from asserting a right under Article 119.  It is irrelevant to argue that Section 85(4) of the 1975 Act is incompatible with European law.  The claim under Article 119 fails because the combined effect of Defrenne, Barber and related decisions is that his claim is precluded on temporal grounds.

	For all those reasons, there is no error of law in the Tribunal decision.  They came to the correct result for the correct reasons.  This appeal is dismissed.