Appeal Nos. UKEAT/0404/07 
& UKEAT/405/07/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 November 2007

Before
HIS HONOUR JUDGE MCMULLEN QC
(SITTING ALONE)

MR J L PEPPER	APPELLANT

1) LANCASHIRE COUNTY COUNCIL 2) SECRETARY OF STATE 
FOR EDUCATION AND SKILLS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	WRITTEN SUBMISSIONS	
For the Respondents	WRITTEN SUBMISSIONS	

SUMMARY

Equal Pay Act – Part time pensions

This is a part-time pensions case. The Chairman on the papers and on review failed to deal with the Claimant’s case that he had just cause for not entering the Teachers’ Pension Scheme when his exclusion was removed. As the parties had made written submissions, for the saving of costs the preliminary hearing was converted into a full hearing, with liberty to apply. The matter would be remitted to the Employment Tribunal for it to make a decision upon the Claimant’s case. Meanwhile orders made by the Chairman relating to the undisputed period will take effect.

HIS HONOUR JUDGE MCMULLEN QC

1.	This is an appeal which raises issues following the judgments of the European Court of Justice, the House of Lords and myself in Preston v Wolverhampton NHS and Others [2004] ICR 920/EAT.  I will refer to the parties as follows:  Mr Pepper is the Claimant, Lancashire County Council is the Respondent.  The Secretary of State for Education and Skills is the Second Respondent but plays no part in these proceedings and written submissions have been made on behalf of both Respondents by Counsel instructed for Lancashire County Council, Mr Pepper’s employer.

2.	The Claimant claimed that he was unlawfully discriminated against contrary to Article 141 of the Treaty of Rome and the Equal Pay Act 1970 in that he was denied equal access to the Teachers’ Pension Scheme because he worked for the Respondent on a part-time basis.  The Employment Tribunal Chairman gave a judgment on the papers in favour of the Claimant on the first part of his claim as entitlement to retrospective membership of the Teachers Pension Scheme from 1 September 1987 to 1 May 1995 was conceded by the Respondents. An Order was made requiring the customary steps to be taken so as to allow the Claimant to make payments and for his pension payments to be adjusted accordingly.

3.	The second part of his claim was for access between 2 May 1995 and December 2000. The matter followed the protocols which I described in Secretary of State v Rance [2007] IRLR 665 EAT.  The Claimant was invited to show cause. He asserted that although he was entitled to join the scheme during the second period he did not do so because at the time his retirement, as he put, was looming and there were reasons why he should decline to push on before the courage gently eased him out.

4.	That constitutes a response to the helpful newsletters which are published on the website under the aegis of Regional Employment Judge John K McMillan, who has oversight of all these part-time pension cases.  Information Bulletin Number 9, paragraph 7.2 sets out accurately the position of a person who was eligible to join but decided not to do so and therefore might have had a reason which ought to be ventilated before the Tribunal.  That was his case.  The Chairman did not decide that case.  The Claimant had failed to give adequate reasons why the claim should not have been struck out for he became eligible to join the scheme on 2 May 1995 and never did not join and so did not suffer any detriment.  

5.	The Claimant asked for a review.  He made the same point.  The Chairman on review refused to amend the order, and still did not decide that point.  At the Claimant’s appeal HHJ Peter Clark sifted this case for a Preliminary Hearing before me.  The Claimant makes the same point.  The Respondent in submissions pursuant to Judge Clark’s order drafted by Ms Kirsten Barry of Counsel on 15 August 2007 accepts that the Chairman did not deal with the Claimant’s case.  Nevertheless, she contends that the Chairman reached the correct conclusion; she noted that the Claimant had accepted that there was no policy discouraging him from joining and that was a complete answer.

Considerations
6.	I will first deal with the submission that the Chairman was unarguably right even though she did not deal with the point the Claimant made.  In my judgment that cannot succeed.  An application of the précis in Bulletin Number 7.3 does not assist the Respondent in this case.  The Claimant became entitled on 2 May 1995 to join the Pension Scheme but did not do so.  The reason why is yet to be adjudicated, but if it were a valid reason he would be entitled to access to the scheme and will have suffered a detriment.  That is the sole issue in the case and I reject the Respondent’s contention that he could only succeed if there were a discriminatory policy debarring, preventing or discouraging him from entry to the scheme.  The Claimant’s case before the Employment Tribunal was not met.  That is conceded by the Respondents.  The basis upon which this case would go forward to a full hearing is that I consider that there is a reasonable prospect of it succeeding.  

7.	Since I have dismissed the Respondents’ auxiliary submission (that although the Chairman did not deal with it, she reached the only conclusion open to her) there is only one conclusion.   This point was raised three times before the Chairman yet she omitted it.   It is conceded by the Respondents that the Chairman did not deal with it.  That is an error of law. The Tribunal is duty bound to deal with points raised before it. Thus, if this matter were to go to an EAT full hearing the only conclusion is that it should be remitted to an Employment Tribunal for consideration.

8.	Since I am the designated judge for Preston appeals, it would be put in my list.  If there were the same submissions, I would reach that conclusion.  What then follows? The Claimant points out that he is considering whether it is worth his taking legal advice and having representation at a full hearing.  The Respondents are both public authorities. Counsel on behalf of them both has summarised a perfectly understandable argument.  I can see no further advantage in having an oral hearing before myself on this.  I doubt whether another judge will get any further assistance than has been given to me. So what I propose to do for the saving of costs and to deal fairly with this issue is to treat this as a full hearing.  I allow the appeal and remit this case to the same Employment Judge to consider the Claimant’s case in full.  She is to consider whether or not she should hold the hearing with members.  The issue will be whether the Claimant suffered a detriment when he did not join the Pension Scheme as he became eligible.  In the meantime, the Respondents will consider their position. In any event the Order made by the Chairman relating to access to the Scheme for the first period will be implemented so that steps can be taken if they have not already been done for recognising the entitlement of the Claimant for a pension at least for the first undisputed period. 

9.	The appeal is allowed, the Respondent’s argument is dismissed, the application of the Claimant will be heard by this Employment Judge or by a Tribunal of three persons as she so decides. This judgment will take effect seven days after the transcript is sent to the parties during which time they may apply for it to be set aside and for further directions on showing reasons.