Appeal No.	 EAT/125/00 EAT/126/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 May 2000

Before
THE HONOURABLE MR JUSTICE NELSON
MISS A MACKIE OBE
MS B SWITZER

EAT/125/00
MRS J NEWNHAM	APPELLANT

BRITISH GAS PLC	RESPONDENT
______________________________________________________________________________
EAT/126/00
MRS E K SIMMS & OTHERS						         APPELLANTS

BRITISH GAS PLC								        RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant:

EAT/125/00
MRS J R NEWNHAM	

MR M KALLIPETIS QC
(of Counsel)
Appearing under the 
Employment Law Appeal
Advice Scheme

For the Appellants:

EAT/126/00
MRS E K SIMMS AND OTHERS

MR P O'BRIEN
(of Counsel)
1 Stonecross
St Albans
Herts
AL1 4AA

	

	MR JUSTICE NELSON:	This appeal is against the unanimous decision of the Employment Tribunal that it did not have jurisdiction to hear the claims brought by former employees of British Gas who at various dates, ranging from the mid-80s, retired from their employment with British Gas.

1	The claim made by the ladies who are the Applicants, Mrs E.K. Simms and Others, and also Mrs Newnham retired at the age of 60.  They claim that they were the subject of unlawful sex discrimination pursuant to the Sex Discrimination Act 1975 and also the European Council Directive 76/207, when they were each of them required to retire at the age of 60 at a time when male employees of the Respondents were allowed to remain in employment until they were aged 65.

2	The Tribunal heard and determined as a preliminary issue whether or not the applications were brought in time.  They found in relation to each of those applications that they had not been brought in time, finding that it would not be just and equitable for the matters to be heard because of the length of time that had passed and the prejudice that that would cause in relation to the hearing of various issues that would arise.

3	There are some 12 grounds put forward by Mr O’Brien on behalf of Mrs Simms and the other ladies upon whose behalf he appears.  In addition Mr Kallipetis QC, who appears on behalf of Mrs Newnham, has adopted those grounds insofar as grounds 1, 11 and 12 are concerned and also added three additional grounds insofar as his client is concerned.

4	This Tribunal has given consideration to all the grounds that have been put before us and we are satisfied, in summary, that they do raise properly arguable points of law.  We shall, for the purpose of completeness and the assistance of the Tribunal that hears the full hearing, indicate in outline which of those grounds have in particular found favour with us as matters which are properly arguable.

5	First, ground 1.  The Tribunal treated the question, which is one of the principal questions to be decided in any litigation of this kind, namely whether the individual wished to retire or not at the time when compulsory retirement came into force, as an issue of liability not one of quantum.  The Tribunal thought that it was addressing liability when, as Mr O’Brien says, looking at the case of Rastall v Midlands Electricity Plc [1996] ICR 644, it was clear that it was in fact addressing quantum.  Insofar as liability is concerned, as the Tribunal found, all the ladies had retired as a consequence of the unlawful policy accepted by BritishGas.  That was the only central issue of liability and that therefore was either conceded or clear on its face.  So the finding that there was a difficulty insofar as the trial of liability is concerned, when in fact there was no such difficulty, had to be a misdirection in law by the Employment Tribunal.  We consider that that ground is properly arguable.

6	It is also submitted in ground 4 (I think it is) that the case of the Director of Public Prosecutions v Marshall [1998] ICR 518, was not properly considered in the cases of Mrs Newnham, Taylor and Tompkinson.  It is said that the Tribunal did not specifically rule on the question of a fair trial and did not give considered weight to the way that the fair trial issue was addressed and expressed by the court in Marshall.  We consider that that ground too is arguable.

7	Grounds 5 and 6 are in a sense allied to ground 1 in that if liability is conceded or clear then it cannot be said that a fair trial cannot take place on the issue of liability and those points are also arguable.

8	In grounds 7 and 8 it is said that there is a misdirection which albeit goes to the Appellants’ advantage, nevertheless it is an error in law, namely that the Tribunal found that time should run from 18 April 1991, not as it should have done when either the Act came into force or the Directive did.  We are also content to leave that as a matter that can be argued at full hearing.

9	In relation to ground 9, Mr O’Brien admittedly with tongue (and we would suggest firmly) in cheek, submitted that Rastall either was applying the concept of constructive knowledge only to the facts of its own case, or alternatively it was wrong in saying that when exercising the discretion which the court had to exercise, that constructive knowledge, as opposed to actual knowledge could be taken into account.  It is however clear, on the face of Rastall, that it is making a statement of principle which is applicable to all cases and, indeed, we can see no error of law on the face of it, either in Rastall or the application of that part of Rastsall to this case.  We do not regard that argument as being proper to go to full hearing and we dismiss that.

10	In relation to ground 11 it is said that the Respondents failed to keep personnel records even though it had been their policy to preserve them.  The task of preserving them had been given to another body which had failed in that task in that those documents could no longer be traced, even though other litigation similar to this had either been on course or had finished.  This was part of the conduct of the Respondents which should have been taken into account and weighed in the scales when exercising the discretion which the Tribunal did not do.  We also think that that is a point which is proper to be considered by the full court in order to decide whether it has true merit as a point of law or not.

11	Finally, in Mr O’Brien’s points it was said that, where delay was found to have been the substantial cause for not exercising the discretion of the Tribunal in favour of the Applicants and that that delay had resulted in part from the Employment Tribunal’s own procedural handling of the claims before it, that that had to be an error of law as well, it being pointed out that the first applications were made in 1994 but for procedural reasons were not heard until all of the matters had been collated and therefore not heard until 1998.  That period of time should at the very least, as I understand the effect of Mr O’Brien’s submissions, have been discounted.  It was not by the Employment Tribunal.  We consider that that also is a matter which should go to full hearing and is properly arguable.

12	In addition, Mr Kallipetis raises a point on the facts, insofar as Mrs Newnham is concerned, namely that the finding that Mrs Newnham’s former line manager remembers that she, that is Mrs Newnham, did not wish to retire at 60 was incorrect.  The finding that her recollection was not accurate is at odds with the evidence before it.  That too, is also arguable.  In addition Mr Kallipetis says that as far as Rastall is concerned, the matter should have been found only to have crystallised in November 1993, not earlier.  This point is covered in part by Mr O’Brien’s earlier grounds and we think that that too is properly arguable.  

13	Finally, Mr Kallipetis submits that the overall equity of the situation demands that the matter be dealt with and go forward for this reason, that British Gas acting as a proper employer did in fact seek to find out those ladies who had in fact retired, as a result of their unlawful retirement policy, and having found them compensated them when they were satisfied that they had wrongly retired.  Some ladies however (and those constitute the ladies who have made these applications) fell through the net.  It would be inequitable in those circumstances, Mr Kallipetis submits, for such Applicants to be deprived of a remedy and that that is another reason which should be weighed in the balance and taken into account in the exercise of the discretion, which the Employment Tribunal did not do.  We also consider that that argument is one that at least should go to full hearing and be determined.

14	For those reasons and for those grounds, with the exclusions indicated, we give leave for the matter to go to full hearing.