Appeal No. EAT/863/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 October 1996

Before
THE HONOURABLE MRS JUSTICE SMITH
MR A C BLYGHTON
MISS D WHITTINGHAM

MRS A CATCHPOLE	APPELLANT

MINISTRY OF DEFENCE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MR T CROSLAND
(of Counsel)
Messrs Baker Gray & Co
Solicitors
30 The Garth
Winlaton
Tyne & Wear
NE21 6DD	

	MRS JUSTICE SMITH:	This is the preliminary hearing of an appeal from a decision of an Industrial Tribunal sitting at Newcastle-upon-Tyne on 11 June 1996.  This was a decision of a full Tribunal of a Chairman and two Members.

	The Tribunal dismissed the Appellant’s application for compensation under the Sex Discrimination Act 1975.  She wished to complain that her dismissal from the RAF in 1981, because she was pregnant, was discriminatory.  However, the Industrial Tribunal held that her complaint was presented more than three months after the act complained of and they refused to allow her claim to proceed under section 76(5) of the Act.  That subsection provides:

“A Court or Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in the all the circumstances of the case, it considers it is just and equitable to do so.”

	The Appellant joined the RAF in 1979.  She married in 1980 a man who was himself a long serving Officer in the RAF.  She became pregnant in 1981 and gave birth to twins in February 1982.  She was dismissed in July 1981 under the regulations which were then thought to be lawful.  She did not present her claim under the Sex Discrimination Act until 9 April 1996.  

	At the hearing of the preliminary issue the Appellant contended that she did not know of the possibility of bringing a claim until January 1996.  The Industrial Tribunal found as a fact that she had realised in 1992 that it was possible to bring a claim in respect of her dismissal..  There was evidence that in 1992 she had watched a television programme which concerned the bringing of claims against the MOD.  The Tribunal considered that that aspect of her evidence revealed that she had “let the cat out of the bag” in that she had known in 1992 that she could bring the claim that she was now advancing.  They thought that she was an intelligent woman.  Bearing in mind her social contacts, they rejected as incredible her claim that she had not known of the possibility of bringing her claim until January 1996.

	She gave evidence that she had been psychiatrically ill, from 1993 until early 1995.  She produced medical evidence to that effect.  However, the Tribunal found that she must have realised the possibility of claiming before the onset of her illness in 1993.  

	The Tribunal thought that the Appellant had delayed for an unacceptable period of time after knowing that she could claim.  They also said that, even if it were right that she had not known of the possibility of claiming until January 1996, she had still not acted with sufficient expedition..  We would accept the submission of Mr Crosland that on the basis of the facts as set out by the Tribunal, it did appear that the Appellant had acted with reasonable expedition after January 1996.  However, the main basis of the decision was that she had acquired knowledge in 1992.

	Mr Crosland, for the Appellant, seeks to advance the case on three grounds.  He accepts that section 76(5) gives the Tribunal a very wide discretion to extend time if, in all the circumstances of the case, they think it just and equitable to do so.  He also accepts, as he must, that it is only if the Tribunal have gone plainly wrong that we have any power to interfere.

	He submits that they have gone plainly wrong.  First, he says that their conclusion that the Appellant had knowledge in 1992 was wholly unreasonable.  He has advanced a number of arguments which, had they been advanced to us as a Tribunal sitting at first instance, we might have found attractive.  They were arguments relating to her illness and the fact that she claimed to have been a person who did not take a great deal of notice of current affairs.  But we have no doubt that these arguments were advanced below and that the Tribunal took them into account.  We reject Mr Crosland’s first argument that the Tribunal’s conclusion, carefully reached, as it appears to us to have been, was wholly unreasonable.

	Second, Mr Crosland submits that the Tribunal had not taken into account the effect of the decision of the European Court of Justice in Emmott to the effect that, so long as the European Directive on equal treatment has not been properly transposed into national law, individuals are unable to ascertain the full extent of their legal rights.  The United Kingdom Government did not implement the Directive so far as members of the Armed Forces were concerned, until 1 February 1995 when the Sex Discrimination Act (Application to Armed Forces etc) Regulations 1994, came into effect.  Mr Crosland has sought tentatively to argue that time did not begin to run, under the Sex Discrimination Act against this Appellant, until that date.

	We have no hesitation in saying that that submission is unarguable.  It is clear from the words of section 76 that time runs from the date of the act complained of and not from the date of knowledge or the date at which legal rights were first clearly understood.  The fact that legal rights were not clear is a matter which a Tribunal may take into account in deciding whether it is just and equitable to extend time.  But time runs from the act complained of.

	In our view, the implementation of the 1994 Regulations is only one of the factors which a Tribunal would wish to consider under an application of this kind.  Where a Tribunal has already reached the conclusion that the Appellant had the necessary knowledge before that date, that date in itself becomes unimportant.  There is no doubt that this Tribunal was aware of the passing of those regulations, because they are referred to specifically in the Notice of Appearance of the Treasury Solicitor.  We reject Mr Crosland’s second argument.

	Third, Mr Crosland submitted that the Tribunal had failed to take relevant matters into account and had taken irrelevant matters into account.  In particular, he complained that not all the matters which the Tribunal ought to have taken into account had been expressly mentioned in the decision.  In particular, the Tribunal does not mention the strength of the Appellant’s claim; nor indeed, is there any reference to the prejudice which would be suffered by the Appellant if the claim were disallowed, and by the MOD if it were allowed to proceed.

	We accept that those matters have not specifically been mentioned and it would have been helpful if they had been.  However, it is clear from the decision that the Tribunal have dealt with many similar cases.  We suspect that familiarity with the subject matter has led to curtailment of the explanation for the decision.

	There is no doubt that this Appellant would have had a strong claim on liability.  The Tribunal must have been aware of that.  Also, it seems to us that the Tribunal must have considered prejudice.  The prejudice to the Appellant in having her claim dismissed is manifest.  It does not need to be stated.  What the Tribunal have not stated is their view of the prejudice to the MOD.  This omission is unfortunate, but we do not think that it could possibly give rise to an arguable ground of appeal.  The difficulties of assessing compensation many years after a dismissal are so well recognised that we are quite satisfied that the Tribunal took those matters into account, although they failed to say so.

	As we said earlier, this Tribunal had a wide discretion, under section 76(5).  It appears to us that they have exercised it after a hearing at which they heard a great deal of evidence.  We do not think that there is any arguable basis on which it can be said that they have gone plainly wrong and accordingly this appeal must be dismissed at this preliminary stage.