Rastall & Ors v Midlands Electricity Plc [1995] UKEAT 627_93_0906

EMPOLYMENT APPEAL TRIBUNAL

BAILII case number: [1995] UKEAT 627_93_0906

Case No Appeal No. EAT/627/93, EAT/1241/94

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

Rastall & Ors

Midlands Electricity Plc

Date 7 November 1986

MR JUSTICE MORISON: These appeals and cross-appeals raise a number of difficult points, the resolution of which may have implications beyond the interests of the parties. This is yet another time limit case which stems from the United Kingdom's failure promptly to give full effect in its domestic legislation either to those provisions of the Treaty of Rome, or, as here, to those of a Directive, which are designed to secure equality of treatment between men and women in the workplace. This case will become one more chapter in an ever-growing volume of authority [see, for example, Biggs v Somerset County Council

EAT/995/94

] on the question of whether claims relating to events many years ago, but which were not pursued at the time because of what were believed to be insuperable barriers to their success in our domestic law, now fall within the jurisdiction of the Industrial Tribunal.

This judgment will, of necessity, be lengthy. We shall consider the appeals and cross-appeals in this way: first, we shall explain the background to the appeals themselves; second we shall identify, in broad terms, what the issues are; third, we shall consider the legislative and judicial framework within which these cases must be viewed; fourth, in relation to each issue, we shall set out the rival contentions (except issue 3) and give and explain our decision; finally, we shall summarise our conclusions and indicate the consequences of our various decisions.

BACKGROUND TO THE APPEALS AND CROSS APPEALS

All 57 applicants, who are women, and who are or were at the material time members of NALGO, now Unison, had been employed by various Boards within the nationalised electricity industry. Each of them retired from their employment because of the Boards' policy that women should retire at 60, which policy was incorporated into their contracts of employment. If any of the applicants had been a man, she would have been entitled to continue working until aged 65, because men enjoyed a later compulsory retirement age than women. The dates of the Applicants' cessation of employment fall within a period from 18 November 1978 to 19 May 1987. Their complaints alleging unlawful discrimination on the grounds of sex were presented to an Industrial Tribunal on various dates between 21 March 1990 and 31 March 1993. There were 57 applicants, but one was withdrawn.

The parties invited an Industrial Tribunal to answer three preliminary questions:

Was there any time limit within which the applicants' complaints had to be presented to an Industrial Tribunal?

If yes, what was it?

From when did time start to run?

The answers to those questions were given by an Industrial Tribunal held at Southampton (presided over by, perhaps, the most experienced Tribunal Chairman, Mr Rich, who had, incidentally, been involved at Tribunal level with the Marshall case) in a Decision entered in the Register on 14 July 1993. The answers were:

There was a time limit.

The time limit is that contained in section 76 of the Sex Discrimination Act 1975 [hereinafter referred to as "the Act"], namely, in subsection (1):

"before the end of the period of three months beginning when the act complained of was done."

The date from which time started to run was the date upon which each of the applicants retired or was retired.

It followed, therefore, that on the basis of this decision all the applications were out of time; but the Tribunal had not been invited to consider its discretion under section 76(5) which provides:

"A .... tribunal may nevertheless consider any such complaint .... which is out of time, if in all the circumstances of the case, it considers that it is just and equitable to do so."

In the course of their Decision the tribunal said this [paragraph 21]:

"Our view, therefore, is that much of the argument that has been put to us over the two days, concerning the time limits, the dates and so on, are matters which ought all properly to be considered by a Tribunal in each of the individual cases with which we are concerned in deciding whether it would be just and equitable for the applicant's case to proceed. The huge variety of dates for the presentation of applications simply underlines that. We do not know why any of these individuals did not pursue a claim earlier than they, in fact, did. That has never been part of the case at this stage. We only mention it as it only serves to illustrate that the operation of the provisions of section 76(1) and 76(5) will comply with the Directive and, therefore, the right provided by the 1975 Act as a result of the Directive can, in proper cases, be pursued. For all we know, all of these applicants may fall within section 76(5) or all of them may not; that is not for us to say at this stage. That will be for others as we see it in each individual case."

There was an appeal and cross-appeal against this Decision and the matter came before the EAT, presided over by Mr Justice Morison. He and the lay members considered it unsatisfactory that questions of time should be decided in the air, without knowing how the Industrial Tribunal would have exercised its discretion under section 76(5) of the Act. Whilst no course of action was wholly satisfactory, it seemed to them that the guiding principle should be that these claimants should have their rights finally determined as soon as practicable. They are all in the latter half of their lives; four applicants have died since their claims were lodged (three before the second Industrial Tribunal hearing and one after). If hypothetical points are taken and run to the highest court and, thereafter, appeals, as here, are lodged against the exercise by the Industrial Tribunal of its discretion to extend time under section 76(5), the total delay will be quite unacceptable. As it is, these cases have not progressed beyond the EAT in the space of nearly five years since the first batch of applications was presented to an Industrial Tribunal. As neither party had submitted that the date from which time ran was the date of retirement (in other words neither party supported the date identified by the tribunal as being that from which time started to run), and as it appeared to the EAT that it was arguable that time did not start running, at the earliest, until 7 November 1987, when section 2(1) of the Sex Discrimination Act 1986 was brought into effect, the appeal was adjourned and the case remitted back to the Industrial Tribunal, with an invitation to it to consider its discretion in relation to each application, under section 76(5), on two hypotheses:

(a) time started to run as from the date of each applicant's retirement and

(b) time started to run as from 7 November 1987.

On the applicants' behalf, it was indicated to the EAT that there was a further argument, in the light of Marshall No 2 , that time did not start running until 22 November 1993, when the Sex Discrimination and Equal Pay (Remedies) Regulations 1993/2798 ["the Remedies Regulations"] came into effect. If such an argument were correct, all the applications would have been lodged within time. That argument was left over until the resumed hearing of the appeal.

In response to the EAT's invitation, the Industrial Tribunal considered the exercise of its discretion under section 76(5) of the Act. Mr Rich refused to review his earlier Decision and consider the new argument that time did not run until 22 November 1993. In our view he was right to take that course and there has been no appeal against that refusal. By a written Decision which was entered in the Register on 2 December 1994, the Industrial Tribunal, which comprised Mr Rich sitting alone, decided as follows in relation to the 56 extant applications:

(a) 2 applications were dismissed as being out of time [Mrs Marshall and Mrs Barnes]. In the exercise of its discretion the Industrial Tribunal decided that it was not just or equitable that their particular cases should be considered under section 76(5);

(b) 3 applications were adjourned, as the applicants had died before the Industrial Tribunal hearing, (one applicant [Mrs Newman] has died since);

(c) in relation to the remaining 51 cases, the Tribunal held that it would be just and equitable for their claims to be considered out of time.

The Electricity Companies, who are the successors in title to the nationalised electricity Boards, by whom the applicants were employed, have appealed against the Tribunal's decision `to extend time' and that appeal has been consolidated with the appeal and cross-appeal against the earlier Decision of the Industrial Tribunal. Leave to amend which has been granted.

THE ISSUES

The matters which fall for us to determine may be stated as follows:

Ought we to allow the applicants to argue that the employers are not entitled to rely upon a time limit point in respect of any application presented to an Industrial Tribunal before 22 November 1993, even though that was not an argument adjudicated upon by the Industrial Tribunal?

If the answer to 1 is yes; should we refer that issue to Europe? The parties agree that unless we can regard the matter as `acte clair' we should do so. Therefore we must decide whether it is, in our judgment, acte clair. If it is not, a reference will be required and that will affect all those applicants whose claims are otherwise rejected as being out of time. As things stand, Mrs Marshall and Mrs Barnes, who have not appealed against the Tribunal's decision not to `extend time' in their cases, have no viable claim unless the argument that 'time runs from' 22 November 1993 succeeds. If we concluded that the Industrial Tribunal were wrong to have extended time in relation to any of the 51 cases, then, also, a decision of the European Court in their favour on the later date would be critical.

If we decided to grant the applicants' application to amend their notice of appeal, and to refer the new point to The European Court of Justice for their ruling, the question then arises as to the course which this Tribunal should then follow. If the European Court of Justice were to hold that none of the employers was entitled to rely upon section 76(1) of the Act until after 22 November 1993, then all the arguments about time limits become 'moot', as all the applications were presented before that date. Therefore, on the one hand, we could await the decision of the European Court and then determine such of the further issues as were necessary to the final disposal of this appeal and cross-appeal. That would cause hardship to those applicants whose applications had been held to have been presented within time under domestic law, and for whom the reference to Europe was unnecessary. Effectively, subject to the limitation points, there is no dispute on liability; there will be disputes on quantum. On the other hand, we consider that it is generally undesirable that courts should decide moot points.

On balance, we concluded that the interests of justice demanded that those women whose claims should properly be considered under domestic law should not have to wait to see whether their claims might have succeeded for different reasons. It follows that we shall consider the further points raised by the notice of appeal and cross-appeal.

Is there any time limit at all? The applicants would wish to argue that there is no time limit as their claims are `free standing' under the Directive, and Parliament has not provided a time limit for any such claim, whether based upon the Treaty, such as Article 119, or upon the Directive, as in this case. If that argument were correct, then all the applications should proceed to a full hearing.

Did time start running before the decision of the House of Lords in Foster , namely 18 April 1991? It is suggested on behalf of the applicants that this argument raises a European point, which should also be referred to the European Court. The argument, in a nutshell, is that time does not run until the Directive has been properly transposed into domestic law and that means, in this case (leaving aside the argument raised in 1 above), the later of the dates when the Directive was transposed into domestic law [7 November 1987] and when the courts of the United Kingdom accepted that nationalised industries, such as the electricity industry, were emanations of the state [18 April 1991]. If the latter date were the true starting point, then 45 of the applications were presented within time.

Did the Industrial Tribunal err in law in the exercise of its discretion under section 76(5) in relation to any or all of the applicants? To some extent this will involve an examination of a number of individual cases and it will become relevant to recite, in some kind of chronological order, the legal framework within which these cases fall.

In the light of our conclusions on the five matters what orders should we make?

THE LEGISLATIVE & JUDICIAL FRAMEWORK

A. LEGISLATION

Section 6 of Act, which came into force on 12 November 1975, renders unlawful acts of discrimination on the grounds of sex by employers against employees at any establishment in Great Britain. Subsection (4) disapplied section 6

"to provision in relation to death or retirement."

But for that subsection, the application to women of a discriminatory retirement age would have been unlawful. Any complaint about such conduct must be referred to an Industrial Tribunal. Section 65(1)(b) of the Act provides that where a tribunal finds such a complaint to be well-founded it shall make:

"an order requiring the respondent to pay compensation ..."

Section 65(2) of the Act provided that:

"the amount of compensation awarded to [a successful complainant] ... shall not exceed the limit for the time being imposed [as the limit on compensation for unfair dismissal]".

That limit was increased from time to time in accordance with orders introduced by the Secretary of State for Employment: see for example the Unfair Dismissal (Increase of Compensation Limit) Order 1993 [SI 1993/1348].

Pursuant to Articles 100 and 235 of the Treaty of Rome , the Council of Ministers issued and adopted Directive 76/207 of 9 February 1976, commonly called the Equal Treatment Directive [which, in this judgment, will be called "the Directive"]. The stated purpose of the Directive was to put into effect in the Member States the principle of equal treatment for men and women. To that end, Member States were required [Article 3] to take such measures as were necessary to abolish any laws which were contrary to that principle, and [Article 7] to introduce into their laws such measures as were necessary to enable persons discriminated against on the grounds of sex to pursue their claims by judicial process. The Directive [Article 9] gave Member States a period of thirty months to implement its provisions. Each of the applicants retired after the provisions of the Directive should have been transposed into the domestic law of the United Kingdom.

On 7 November 1986

With effect from 22 November 1993, the Remedies Regulations took effect so as to abolish the limit on compensation in relation to complaints of unlawful discrimination under the Act, and to empower the Industrial Tribunals to award interest on awards of compensation made after that date.

B. JUDICIAL DECISIONS

Miss Marshall was employed in the National Health service by the Southampton and South West Hampshire Area Health Authority (Teaching) and she, too, left her employment as a result of a similar discriminatory retirement policy incorporated in her contract. In 1980, it appears, she brought a complaint against her former employers. Her complaint under the Act was dismissed by the Industrial tribunal; but it upheld her complaint under the Directive. The EAT held that she had no claim, either under the Act or the Directive. By a reference dated 12 March 1984 the Court of Appeal referred two questions to the European Court of

Justice of which the second was:

Whether Article 5(1) of the Directive may be relied upon by an individual before national courts and tribunals?

By its judgment delivered on 26 February 1986 [ Marshall v Southampton & South West Hampshire Area Health Authority (Teaching)

[1986] ICR 335

] the European Court held that Article 5(1) of the Directive

"which prohibits any discrimination on the grounds of sex with regard to working conditions, including the conditions governing dismissal, may be relied upon as against a state authority in its capacity as employer, in order to avoid the application of any national provision which does not conform to article 5(1)."

Accordingly, Miss Marshall's complaint succeeded as a result of the avoidance of the application of section 6(4) to her case, and, by consent, on 24 July 1986, her claim was remitted to the Industrial Tribunal for a consideration of remedy.

On 21 June 1988 the Industrial Tribunal awarded Miss Marshall £19,405, a sum which included £7,710 interest. On 18 September 1989 the EAT,

[1990] ICR 6

, allowed the Authority's appeal against the award of interest. Miss Marshall appealed and appeared in the Court of Appeal in person in July 1990. By a majority, on 31 July 1990, the Court of Appeal dismissed her appeal,

[1991] ICR 136

, and rejected the suggestion that there was a question fit to be referred to the European Court. Miss Marshall appealed to the House of Lords who, on 14 October 1991, referred three questions to the European Court of Justice, asking that court, in effect, whether either the limit on compensation in section 65(2) of the Act, or the absence of any power in a Tribunal to award interest, was compatible with the Directive.

On 26 January 1993 Mr Advocate General Van Gerven delivered his opinion. On 2 August 1993 the Court delivered its judgment. The essence of the court's ruling was that

"(1) The interpretation of Article 6 of ... [the] Directive ... on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions must be that reparation of the loss and damage sustained by a person injured as a result of discriminatory dismissal may not be limited to an upper limit fixed a priori or by excluding an award of interest to compensate for the loss sustained by the recipient of the compensation as a result of the affluxion of time until the capital sum is actually paid.

(2) A person who has been injured as a result of discriminatory dismissal may rely on the provision of Article 6 of the Directive as against an authority of the state acting in its capacity as an employer in order to set aside a national provision which imposes limits on the amount of compensation recoverable by way of reparation."

When the matter came back before the House of Lords, on 2 February 1994, Miss Marshall's appeal was allowed and the decision of the Industrial Tribunal, chaired by Mr Rich, was restored.

Miss Marshall had, apparently, presented her original complaint to an Industrial Tribunal on 19 June 1980. She had to wait nearly 14 years for justice to be done. That is not satisfactory; and, so far as we can, we shall try and ensure that such of these applicants as are entitled to compensation are not made to wait for so long.

Meanwhile, Mrs Foster and five female colleagues who had formerly been employed within the nationalised gas industry were pursuing claims. They, too, were compulsorily retired pursuant to a discriminatory retirement age provision in their contracts of employment. Their complaints, supported by NALGO, were dismissed by the Industrial Tribunal in their decision of 23 October 1986, on the grounds that British Gas was not a state authority and, therefore, was not prevented from relying upon the provisions of section 6(4) of the Act. Their appeal was dismissed by the EAT on 6 July 1987, Foster & Others v British Gas PLC

[1987] ICR 904

; and their further appeal by the Court of Appeal on 13 May 1988,

[1988] ICR 584

, which refused the appellants leave to appeal to the House of Lords.

At the time of the decision of the Court of Appeal, the Sex Discrimination Act 1986 had been enacted and, thus, Nourse LJ was able to say, at page 589 F, that section 2 of the 1986 Act "may give to the actual decision in this case a historical interest only."

Mrs Foster and her colleagues persisted. They successfully petitioned the House of Lords for leave to appeal in late 1988; argument was heard on 27 February 1989 and by an order dated 4 May 1989 the Judicial Committee referred to the European Court the question, inter alia , whether British Gas employees were entitled to rely directly upon the Directive.

Following oral submissions on 15 March 1990, and the delivery of Mr Advocate General Van Gerven's opinion on 8 May 1990, the European Court, by its judgment delivered on 12 July 1990 Foster v British Gas

[1991] ICR 84

, gave guidance on the question and held that Article 5(1) may be relied upon in a claim against any body:

"whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the state and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals."

That formulation of the principle was considerably wider than that favoured by the Court of Appeal. The Court of Appeal had drawn a distinction between, on the one hand, the State as a governing body exercising governing authority, directly or through such entities as the police service which could be described as the State; and nationalised industries which exercised no governing authority, and could not be so described, on the other.

Although the final result in favour of Mrs Foster and her colleagues might well have been regarded, perhaps with the benefit of hindsight, as inevitable, British Gas maintained their position. Thus, finally, the House of Lords, on 18 April 1991, delivered judgment

[1991] ICR 463

in the women's favour and ordered their claims to be remitted to an industrial tribunal for an assessment of compensation. In due time, so we were told, each woman received compensation which, on average, amounted to some £45,000. By comparison with Miss Marshall, their claims were resolved after some five or six years.

The decision by the European Court in Foster was rightly claimed by NALGO to represent a considerable triumph. The Union's Director of Legal Services, Mr Bruce Piper, who had been responsible for the care and conduct of the case, understood the possible implications for other women in other nationalised industries, and in the public sector more generally. He drafted a memorandum dated 2 August 1990, which was circulated to the Secretaries of all Branches, of Retired Members and of District Councils. This memorandum says:

"The Legal Officer advises that this [the European Court Decision] means that local and regional authorities carrying out public functions in accordance with the judgment are caught by the decision as well as nationalised industries.

Although the case has to return to the House of Lords for implementation it is important that any members formerly employed by a public authority as defined who were forced to retire at an age below that of a fellow employee of the opposite sex should lodge their claims at the earliest possible moment if they wish to take advantage of the decision. To do so they should write to the Legal Officer at Headquarters quoting [a reference] and enclosing a branch letter confirming membership of NALGO at the date of retirement and branch support. An Industrial Tribunal Form will be sent for completion and return in time to enable it to be lodged by the end of the month . This does not apply to NHS employers who were specifically entitled to bring similar claims under the ECJ decision in Marshall v Southampton and South West Hampshire AHA in 1986 and whose claims will now therefore be out of time.

Action needs to be taken urgently if the claims are to succeed. ...."

In addition, NALGO gave widespread publicity to the decision through their two publications: Public Service and NALGO News. The former is a monthly publication sent in bulk to all branches for distribution to paid up members, and to retired members' secretaries for distribution to retired members. The latter is for union activists and only one copy would routinely be sent to each Branch.

As a result of the publicity, 26 applications were presented to the Industrial Tribunal within three months of the decision of the European Court in Foster . Not surprisingly, not all the retired women kept in touch with their union or read the Union's publications and, upon an analysis of the facts each case, the Industrial Tribunal determined the date when each woman acquired knowledge of her rights.

We have compiled a chronology which incorporates the more relevant dates, making use of the Schedule of Applicants in date order of presentation of claim [to be found in volume A tab 9 pages 164-166 inclusive]. This chronology and Schedule of Applicants are annexed to this judgment as annexures A and B respectively.

THE ISSUES CONSIDERED

We turn, therefore, to each of the issues:

Issue 1

Should the applicants be permitted to amend their notice of appeal and argue that the employers are not able to rely upon any time-limit in respect of any application presented to an Industrial Tribunal before 22 November 1993?

We unhesitatingly answer this question `yes'; indeed, it is somewhat surprising that objection should have been taken to the application for leave to amend.

On behalf of the employers Miss Slade QC urged on us:

In normal circumstances the Employment Appeal Tribunal will not permit parties to argue points which were not argued in the Industrial Tribunal: Hellyer Bros v MacLeod

[1987] ICR 526

at 561 G.

By the date of the hearing before the Industrial Tribunal on 4 May 1993 the House of Lords in Marshall No 2 had referred questions for decision by the European Court of Justice [14 October 1991] and the Advocate General had delivered his opinion

[26 January 1993]. Therefore, the applicants could have argued the point, now sought to be raised, "in order to preserve their position".

No special circumstances exist, such as improper conduct on the part of the employers, or the new point being determinative of whether the Tribunal had jurisdiction, to warrant the granting of leave to amend. We were referred, inter alia , to Kumchyk v Derby City Council

[1978] ICR 1116

The point raised by the proposed amendment will not affect the outcome of the appeal.

It will be convenient to deal with the merits of the argument in due time. Suffice it to say, at this stage, that we reject the submission that the new point could not affect the outcome of the appeal for at least two applicants, whose applications the Tribunal did not consider it just and equitable to consider.

In our view, it is nothing short of absurd for the employers to suggest that, in advance of the European Court's decision in Marshall No 2 , an argument in anticipation of that decision was either feasible or sensible. To suggest that a party is to be prejudiced for not arguing a point, which was then hypothetical, in order to `preserve their position' reduces litigation to some kind of ritual dance. It is not suggested that the employers would be prejudiced were we to grant leave; nor that any further evidence would be necessary. Until Marshall No 2 was decided by the European Court, and until its effect had been implemented by the introduction into domestic law of the Remedies Regulations, there was no arguable point to be made, and the applicants may be forgiven for not taking the Industrial Tribunal's time purely in order to `preserve their position'. If the point had been mentioned, no doubt the Industrial Tribunal would simply have noted it and suggested that any argument be deferred until after the European Court's decision.

Although put as well as it could have been, we have to say that the objection to the amendment to the notice of appeal was so baseless that it should not have been made at all.

Needless to say, nothing we have said on the point affects any decision of the Employment Appeal Tribunal, in the past or the future, as to the need for exceptional circumstances before a party may be permitted to argue a new point which was not argued in the Industrial Tribunal. It seems to us that the pre-dominant consideration is the doing of justice between the parties. Justice demands finality, and that parties should only have one trial, which itself suggests that parties should deploy all their evidence and arguments at the one trial. Thus, where the new point would require fresh evidence or a remission back to the Industrial Tribunal it will be rare, if ever, that it would be just to permit it to be raised on appeal. In this case, if it were a new point, it would be unjust not to allow it to be raised. There is no surprise or prejudice to the employers. It is a pure point of law which was not sensibly available at the Industrial Tribunal. In any event, it is not so much a new point as an extension of a point which was fully argued, and, indeed, agreed by both parties: namely that, if there was a time limit, time could not run until the date of the proper transposition into domestic law of the Directive. Before the Industrial Tribunal, on the basis of the law as it was then appreciated, that date was 7 November 1987, which was the date from which time started to run, as contended for by Miss Slade on behalf of the employers. The `new point' involves considering whether 'proper transposition' occurred then or on 22 November 1993.

Issue 2

Is the answer to the `new point' so clear that we ought to accept or reject it, without referring the question to the European Court of Justice?

We preface our short summary of the arguments in this case with a number of preliminary observations:

All the applications were filed before the delivery of the European Court's decision in Marshall No 2 , and, a fortiori , before the introduction of the Remedies Regulations into our law. However, the Remedies Regulations apply to any award made on or after 22 November 1993. Therefore, all the applicants, whose claims will be considered, will be entitled to unlimited compensation and interest on any award; no applicant has been deprived of a full award as a result of the United Kingdom's failure to give effect to Article 6 of the Directive before that date.

As a matter of fact, none of the applicants withheld her application because she did not consider, with or without advice, that domestic law did not give her a remedy which was worth pursuing. If, therefore, it is a principle of European law to be applied in this case that `state employers' cannot rely on a domestic time limit until after the provisions of the Directive, including those as to remedy, have been transposed into our domestic law, such a principle, as we understand it, cannot be founded upon any notion of estoppel, involving detriment.

Although it may be anticipated that the value of each of the applicant's claims will exceed the limit, that cannot be certain. If the principle contended for on the applicants' behalf is correct, then it must apply even where an applicant's claim was unaffected by the provision concerned; otherwise, the question as to what time limit applied could only be decided after the applicant's compensation had been assessed.

The argument before the court on this point is only relevant and critical to the cases of those women who must be taken to have been aware of their rights to make a claim, but in respect of whom it was neither just nor equitable that time should be extended. They have not lost their right to compensation by reason of the United Kingdom's tardiness in introducing the Remedies Regulations; rather they have lost their rights because they have `slept on them' in circumstances in which it is not just and equitable to extend time in their favour to the extent necessary.

Each party argued that we could be positive as to the outcome, but in opposite directions.

Counsel for the applicants argued that:

It was a principle laid down in Emmott v Minister for Social Welfare and Attorney General

[1991] IRLR 387

, paragraphs 19 - 24, that until a Member State has introduced into its national laws measures giving effect to the Directive in a "sufficiently clear and precise manner so that .... [individuals] can ascertain the full extent of [their] rights" the competent authorities of the Member State [such as the electricity boards] are precluded from relying, in proceedings brought against them, upon time limits for bringing such proceedings. The "full extent" of the individual's rights includes an entitlement to the full amount of compensation for an interference with those rights. Therefore, until 22 November 1993, the electricity boards may not rely upon a time limit. Reference was also made to Steenhorst-Neerings v Bestur Van de Bedrijfsvereniging Voor Detailhandel, Ambachten En Huisvrouwen

[1994] IRLR 244

In Marshall No 2 the European Court held that the obligation on a Member State under Article 6 required the provision in its legal process of measures such as to guarantee `real and effective judicial protection' to those rights guaranteed by the Directive; that a cap on compensation and a lack of power to award interest fell short of what was required. Accordingly, until the Remedies Regulations came into force as from 22 November 1993, it cannot be said that the United Kingdom had fully or effectively transposed the Directive into national law.

On the employers' behalf it was submitted that

There is a fundamental difference between, on the one hand, a time-limit provision, which would bar a claim from being made, and, on the other, a provision which limits the amount of compensation. Emmott was solely concerned with a time bar which impacted on the right to bring a claim, rather than on the extent of the claim: the applicants were not deprived of their right to sue but only of their right to obtain unlimited compensation. The limits on compensation did not "render virtually impossible" the exercise of the women's rights to compensation.

The Court upheld this distinction in Steenhorst-Neerings and rejected, implicitly, the opinion of the Advocate General in that case where he said:

"Since you have recognised the principle of equal treatment as from 23 December 1984, it would be quite surprising if, by means of procedural rules, a Member State, could affect the full effectiveness of the Directive, and even more surprising because, since the conditions precedent to reliance on that Directive have been met, the national judge must not apply material provisions which are contrary to this principle."

In that case, the Netherlands Government had failed to implement the 1979 Social Security Directive by the applicable date [23 December 1984]. Until 1988, under their domestic law, a married woman had no right to claim incapacity benefit from the state if her incapacity arose prior to 1 October 1975. As a result of a decision of the domestic courts in 1988, the state scheme was held to cover such women. Mrs Steenhorst-Neerings made a claim, which was successful, but the award was backdated only one year from when she made her claim, in accordance with the rules of the scheme. She pursued a claim from 23 December 1984, relying upon the Directive; but the Court rejected it. It was argued that there was no distinction in principle between a provision in domestic law which limits the retroactivity of a claim on the one hand, from a provision which caps the compensation, on the other. The result is the same in either case: namely a reduction in the amount recovered.

Our conclusions may be shortly stated:

We take as our starting point the judgment of the Master of the Rolls, Sir Thomas Bingham, in R v International Stock Exchange of the United Kingdom and the Republic of Ireland Limited

[1993] QB 534

, at 545 D-G, where he said:

"... I understand the correct approach in principle of a national court (other than a final court of appeal) to be quite clear: if the facts have been found and the Community law issue is critical to the court's final decision, the appropriate course is ordinarily to refer the issue to the Court of Justice unless the national court can with complete confidence resolve the issue itself. In considering whether it can with complete confidence resolve the issue itself the national court must be fully mindful of the differences between national and Community legislation, of the pitfalls which face a national court venturing into what may be an unfamiliar field, of the need for uniform interpretation throughout the Community and of the great advantage enjoyed by the Court of Justice in construing Community instruments. If the national court has any real doubt it should ordinarily refer."

We remind ourselves that neither the EAT nor the Court of Appeal in Foster entertained the possibility of a reference to the European Court; yet, after the issue had been referred by the final court of appeal, the European Court gave an interpretation to the meaning of a state employer which differed radically from that adopted by the national courts.

The European Court of Justice decided in Emmott that although the third paragraph of Article 189 of the Treaty left a Member State free to choose the form and methods by which the result to be achieved by the Directive was transposed into national law:

".... that freedom does not affect the obligation, imposed on all Member States to which a Directive is addressed, to adopt, within the framework of their national legal systems, all the measures necessary to ensure that the Directive is fully effective, in accordance with the objective which it pursues .... [paragraph 18]

In this regard the Member States are required to ensure the full application of Directives in a sufficiently clear and precise manner so that, where Directives are intended to create rights for individuals, they can ascertain the full extent of those rights and, where necessary, rely on them before the national courts ... [paragraph 19]

Only in specific circumstances ... has the court recognised the right of persons thereby affected to rely, in judicial proceedings, on a Directive as against a defaulting Member State. The minimum guarantee, arising from the binding nature of the obligation imposed on the Member States by the effect of Directives cannot justify a Member State absolving itself from taking in due time implementing measures appropriate to the purpose of each Directive ...

So long as a Directive has not been properly transposed into national law, individuals are unable to ascertain the full extent of their rights. That state of uncertainty for individuals subsists even after the Court has delivered a judgment finding that the Member State in question has not fulfilled its obligations under the Directive and even if the Court has held that a particular provision or provisions of the Directive are sufficiently precise or unconditional to be relied upon before a national court. [paragraph 21]

Only the proper transposition of the Directive will bring that state of affairs to an end and it is only upon that transposition that the legal certainty which must exist if individuals are to be required to assert their rights is created. [paragraph 22]

It follows that, until such time as a Directive has been properly transposed, a defaulting Member State may not rely on an individual's delay in initiating proceedings against it in order to protect a right conferred upon him by the provisions of the Directive and that a period laid down by national law within which proceedings must be instituted cannot begin to run before that time. [paragraph 23]

The answer to the question referred to the Court must therefore be that Community law precludes the competent authorities of the Member State from relying, in proceedings brought against them before the national courts in order to protect rights directly conferred upon him by Article 4(1) of Directive 79/7/EEC, on national procedural rules relating to time limits for bringing proceedings so long as that Member State has not properly transposed that Directive into its domestic legal system." [paragraph 24]

The European Court's Decision in Steenhorst-Neerings was based upon concepts of `sound administration' and `the need to preserve financial balance' in an insurance scheme. Neither of these considerations applies here. It may well be that, as at least one distinguished author has observed [E. Szyszczak; see the opinion of the Advocate General in Steenhorst-Neerings page 249, paragraph 23], the policy behind the decision in Emmott is to provide

another sanction to compel Member States into speedy compliance with their obligations under Directives. That policy may be tempered by other policy considerations [eg `sound administration'] which may differ according to the nature of the rights being protected by the particular Directive. We do not feel able, with complete confidence, to resolve this issue and believe that a reference to the European Court would be appropriate. The reference will affect only those applicants whose claims have otherwise failed under section 76 of the Act.

Issue 3

Is there a time limit?

It seems to us quite clear that the claims being brought by the applicants are claims under the Act: that is, unlawful discrimination on the grounds of sex. Those claims would have failed as a matter of domestic law until section 6(4) of the Act was amended, as the retirement provision incorporated into the contract of employment was `provision in relation to death or retirement'. The effect of the Directive is, in appropriate cases, to disapply incompatible domestic legislation. Since the argument in this case, we have had the advantage of reading the decision of this court, before the President and Members, in Biggs . We simply adopt the analysis of the Court on this issue. We cannot improve upon it. Accordingly, we are satisfied that the claims brought by the applicants were subject to the time limits provided for in section 76 of the Act.

Both parties contended that, if there was a time limit, it ran from the date when section 6(4) of the Act was amended, namely 7 November 1987. The Industrial Tribunal concluded that time started to run from the date when each of the applicants retired from their employment. Technically, the Industrial Tribunal may be correct. Each of the applicants could have presented her claim within three months of her retirement and, thereafter, when confronted with the defence that section 6(4) applied so as to disentitle her to relief, could have relied on the Directive, arguing that their employer was an emanation of the State. However, it is common ground that we should approach the question of discretion on the basis that none of the applicants can be criticised for not presenting their application before 7 November 1987.

Issue 4

Did time start running before the decision of the House of Lords in Foster [18 April 1991], by which date 43 applications had been presented?

The arguments on behalf of the applicants may be summarised thus:

Until 18 April 1991 the UK's courts and tribunals were failing to accept that EC Directives had direct effect against the former nationalised industries. Thus, the State, through its legal system, was refusing to give full effect to the Directive.

The courts of a Member State are required to give full effect to a Directive which bind that state. "It follows that [our emphasis] acts or default of courts (or tribunals) amount to the acts or default of the state in the context of European law."

Prior to the decision of the House of Lords, the effect of the court's interpretation of `state authorities' rendered virtually impossible the exercise of rights conferred by the Directive, since it emasculated [our word] the range of employers against whom the `direct effect' principle could apply. This was no different from a procedural provision of domestic law which was so framed as to render virtually impossible the exercise of rights conferred by Community Law.

We should ourselves refer this issue to the European Court, especially if we concluded, as we have, that we should refer to the Court the question raised by the amended notice of appeal.

We do not need to set out the arguments for the employers on this issue as we were not persuaded that the applicants' arguments were sustainable. It seems to us that, for present purposes, there is a fundamental distinction to be drawn between legislation and judicial decision. Until it is amended, legislation is determinative of the rights of those affected by it. The courts must interpret the law as they think right. The judicial system permits of appeals and references to the European Court where appropriate. The statement that the Judicial Committee of the House of Lords, when allowing an appeal, declares to be the law that which was always the law, although not recognised as such, is logically sound and, in most cases, true. For present purposes it is simply not correct to assert that the lower courts' decisions which failed to give full effect to the Directive are to be treated as the acts or defaults of the State. The judicial system was engaged in the process of seeking an interpretation of the concept of an authority which could be said to be an emanation of the State, and that process concluded with the decision in Foster in the House of Lords. By that decision we became aware that gas companies were State employers for the purposes of Emmott . Gas companies were always emanations of the State, although the lower courts had not recognised them to be so. The gas companies had not changed their identity; the Directive remained the same; the European Court gave guidance on what it had always understood the law to be, and, in accordance with it, the House of Lords clarified the position. At that stage, and not before, the judicial process was complete. We cannot understand how it could be said that the State is responsible for the acts or defaults of the courts, or if it is, it is responsible for mis-interpretations of the law by the lower courts before the completion of the judicial process. The decision of the Court of Appeal in Foster was to be taken as the law, subject to any further decision by the House of Lords. In the light of possible claims against the UK Government by individuals who have suffered loss as a result of a failure to implement Directives, we would wish to state quite forcefully that we can see no sound reason in law or policy why the State can be saddled with responsibility for decisions of the lower courts which are subject to appeal. In our judgment, contrary to the assertion by counsel for the applicants, it simply does not follow, in law or in logic, from the proposition that the courts must give effect to a Directive which binds the State, that the State is bound by a decision of one court which is `put right' subsequently by a higher court.

Issue 5

The general principles

Did the Industrial tribunal correctly exercise its discretion to extend time in all but two cases?

The employers challenge the way the Industrial tribunal has dealt with the question of discretion on a number of grounds. Miss Slade QC presented their arguments with the aid of a reasonably compact written argument, only the main points of which we may now summarise as follows:

Although the task of an appellant is a heavy one where the decision being challenged is the exercise of a discretion, nonetheless we have power to overturn the decision where we are satisfied that there has been a material misdirection.

The Industrial tribunal were wrong to apply as a general principle that any application presented within three months of 18 April 1991 should be allowed to proceed. There are a number of specific instances in which this principle operated so as to `save' an application which would otherwise have been dismissed: see paragraphs 65, 66, 67, 75, 79, 80, 81, 91 and 92. By adopting this principle the Industrial Tribunal wrongly fettered their discretion and never effectively exercised its discretion in relation to each individual applicant.

The Industrial Tribunal wrongly stood on its head one of the employers' submissions, namely that a time must come after which no claim could be accepted as being timeously presented. In paragraph 16 of its Decision, it wrongly treated that submission as justifying drawing a line after which all claims were admissible. It is said that the tribunal thereby confused the date from which time runs with the date after which no claim should be admissible.

The Industrial Tribunal misdirected itself as to the significance of the House of Lords' decision in Foster . The significant date was the date of the European Court's decision.

The Industrial Tribunal failed properly to have regard to the evidence of prejudice which the employers presented to it; such as the death or retirement of witnesses and loss of records.

For the applicants it was submitted that

This was an example of an appeal on fact being dressed up as an appeal on a point of law.

The Industrial Tribunal had considered each of the applications on its merits without regard to any binding principle.

We start by paying tribute to the careful and well-reasoned way that the Industrial Tribunal Chairman set out his Decision, which seems to us to be a model of its kind. We should record, also, that both parties themselves paid tribute to the manner in which he had set out his Decision.

The structure of the Decision is self-evident. The Chairman correctly directed himself as to the proper approach to the exercise of his discretion under section 76(5). In paragraph 29 of his Decision he said this:

"All of the applications are, therefore, out of time and, in deciding whether it is just and equitable that they should be considered, I have to look at all the circumstances. Clearly the state of the law, and the uncertainty which is apparent from the timetable I have indicated above, is one very important factor. The knowledge of the individuals as to whether or not they have a claim is another factor. The delay and, sometimes long delay, from the date of retirement in bringing proceedings, is a third factor, which impinges upon the fourth, and that is any hardship suffered by the parties as a result of the delay, or any prejudice which is thereby created. I feel, however, I cannot ignore as a factor the conduct of the parties and, in particular in this case, that of the respondents, either as individual respondents, or, more particularly, as part of the State. Miss Slade also invited me to consider ... whether these really were strong cases ... Miss Slade also invites me to consider, as some sort of guide, provisions of the Limitation Act 1980, and, in particular, those matters set out in section 33(3) to be taken into account in exercising a discretion under that Act in permitting an action to proceed."

No criticism was made of this paragraph.

The Chairman then expressed his views on the general principles. He first turned to a rough overview of the merits and concluded, rightly, that the claims in this case are "indefensible on the merits". As to hardship and prejudice he concluded that there was no greater hardship or prejudice to one party rather than the other. That seems to us to be a finding which he was quite entitled to reach on the material before him. It is to be noted that he expressly referred to the prejudice which the respondents had put before him. In arriving at this conclusion he has not misdirected himself in any way. He then considered the parties' conduct. He was critical of the way the companies dealt with the women's retirement age after Marshall No 1 . We doubt the relevance of this consideration, but his conclusion [paragraph 34] was:

"All I can say is that I find it somewhat distasteful and, when one is, as in these cases, dealing with principles involving the words justice and equity, it hardly weighs in the balance in favour of the respondents."

On that negative basis, there can be no real complaint about his assessment.

He then considered whether any of the applicants could be criticised for not following

"the lone furrow being ploughed by Miss Marshall".

He concluded [paragraph 25] that such claims would have been

"speculative to say the least, and I do not think I could say that it would be just and equitable for me to criticise, or hold it against any of the applicants, that they did not commence proceedings on that basis."

Again, neither party criticised this conclusion; indeed, it was both parties' contention that time should not be regarded as having started until 7 November 1987.

The Chairman then considered the impact of the Foster v British Gas litigation on the applicants' conduct. He concluded [paragraph 38] that if applications had been presented after the decision of the Court of Appeal

"either: (i) they would have been dismissed ... or (ii) had it been known that leave to appeal to the House of Lords had been given, they might have been adjourned pending the outcome of those proceedings. The fact is, as Mr Cavanagh [counsel for the applicants] has argued before me, up to and including the Court of Appeal decision, it is clear that none of the applicants had a right to bring a claim against any of the respondents. That was the position taken by British Gas which itself is part of the State, as are the respondents.

He continued [paragraph 39]

"Some, perhaps, glimmer of hope came from the decision of the House of Lords to make a reference to the European Court. The light brightened with the Advocate General's opinion. It became brighter still with the decision of the European Court, but the position was not by any means certain. That can be illustrated by the stance taken by British Gas, as part of the State, before the House of Lords after the European Court ruling had been received: that even on the application of the European Court's principles, British Gas was still not part of the State. It does seem to me that the State, as represented by British Gas and by these various respondents before me, cannot, in common parlance, have its cake and eat it. It was arguing right until the House of Lords finally gave its decision on 18 April 1991. At that stage, the nationalised industries were finally classified as part of the State. In my view, as I have already indicated, the line taken by these organs of the State throughout, effectively dissuaded and, up to a certain point, prevented all but the brave from issuing proceedings. I do not see how in applying the principle of whether it is just and equitable for a Tribunal to consider these applications that I can possibly ignore the conduct of the State through its various limbs. I cannot conceive that justice and equity prevent me ordering the consideration of these applications if they were presented before the date of the House of Lords' decision in Foster v British Gas . It seems to me to be inescapable that as the responsibility for that situation fell fairly and squarely upon the State, it cannot use that now to its advantage."

Having considered various submissions, the Chairman concluded in paragraph 41:

"In these particular cases, taking into account the various factors which I have just set out, I conclude that it would be just and equitable to consider any complaint that was presented within three months of Foster in the House of Lords."

It seems to us that these passages may be fairly criticised in two respects.

In the first place, the principle enunciated in paragraph 41, namely that it was just and equitable for any application presented within three months' of the date of the decision in Foster in the House of Lords [18 April 1991] to be considered, can only be justified if the date by which it is just and equitable to consider an out-of-time application bears no relationship to any applicant's state of mind. It is clear, on the facts, that none of the applicants nor their advisers regarded that date as significant:

(a) By 18 April 1991, 45 applications had already been presented; self-evidently the date of that decision played no part in their actions.

(b) There was no evidence that any of the other applicants who presented their complaints after that date was influenced by the decision of the House of Lords. All of them acquired knowledge of their rights without specific reference to the House of Lords' Decision.

(c) The Union itself regarded the critical date as 12 July 1990, being the date of the European Court's judgment in Foster .

Therefore, it is pure happenstance whether an application was or was not presented within three months of the House of Lords' decision in Foster . The principle adopted by the Industrial Tribunal, if correct, would have wayward results. We have no doubt that the Chairman was seeking to find a common `starting date' before which discretion in the applicants' favour would always be granted. The danger of such a process is that it fails to give proper weight to each individual's state of knowledge. In this case, for example, NALGO had alerted their members to take action after the decision of the European Court, rather than await the outcome of the decision in the House of Lords. Had an applicant who had received this advice decided to ignore it, for no good reason, but then quite fortuitously presented a complaint within three months of the decision of the House of Lords of which she was unaware, one might expect an Industrial Tribunal to conclude that she had slept on her rights and that justice and equity favoured dismissing her claim. That said, as a matter of principle, absent any other facts, we do not criticise the Chairman's conclusion. We do think, however, that this approach has led him into error in a number of specific cases, with which we shall deal in due course. To that extent we consider that the respondents have made good their submissions summarised in 2-4 above. This is, we think, clearly a case where we ourselves can put right any error in relation to any individual case without referring the matter back to the Industrial Tribunal; especially in the light of the very realistic approach which Mr Cavanagh took in his submissions on the particular cases.

Second, it is not quite correct to say that none of the applicants had a right to bring a claim after the Court of Appeal decision in Foster . But we do not criticise the Chairman for this loose expression. It is clear, we think, that the Chairman was addressing his mind to the question whether an applicant could reasonably be expected to file a complaint if she would have been reasonably advised that as the law stood such a complaint would be bound to fail. The Chairman plainly was intending to refer to a right to bring a worthwhile claim. If this is the correct interpretation of what he was saying, we agree with his conclusion.

Before we express our conclusions on the general approach to the exercise of the judgment required by section 76(5) we would make the following two general points:

It was common ground before the Industrial Tribunal that the power to `extend time' in section 76(5) of the Act is wider than the equivalent provision in relation to claims for unfair dismissal. Section 67 of the 1978 Act, which governs the latter, provides:

".... an Industrial tribunal shall not consider a complaint under this section unless it is presented to the Tribunal before the end of the period of three months beginning with the effective date of termination or within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months."

Under that subsection, the first issue is whether it was reasonably practicable for the complaint to have been presented within time; there are no such words in section 76(5). The second issue relates to the choice of a `further period'; that choice does not have to be made under the Act. It is to be noted that in Biggs the Industrial Tribunal Chairman considered that there was no further period which was reasonable, and it would appear that the EAT accepted that conclusion.

We are considering the question of time limits, against the background of a failure by the State, in breach of its obligations under the Treaty, to introduce legislation giving proper effect to a Directive. In such a case, we are concerned to give effect to the policy enunciated by the European Court that, having so failed, the State should not be permitted to take advantage of procedural limitations so as to deprive persons who would have had a good claim had the State not been in breach, from now pursuing their claims. In other words, there are different consideration which apply in this case from those which applied in the case of Biggs .

It does, however, seem to us that an important question of policy is at stake in this case. There can be no doubt that if the claims are allowed to proceed the respondents will have the greatest difficulty in contesting them on quantum. Documents will have been lost and witnesses will have become uncontactable. The crucial issue in many cases is likely to be an assessment of the chances that any particular woman would have stayed on at work if given the opportunity of doing so. Although the respondents are emanations of the State, it is something of a fiction to hold them personally responsible for the legislative decisions taken by Government. On the other hand, if the applicants are not entitled to bring their claims, then their rights will have been defeated by procedural niceties. They are the victims of unlawful discrimination in respect of which they were wrongly excluded from a remedy. Every court is instinctively reluctant to permit old claims to be litigated because of the obvious risks of injustice. The choice is stark and unattractive, and it is not obvious where justice or equity should lead.

It seems to us that section 76(5) should be applied in the light of the policy as enunciated by the European Court, to which we have referred, and that we can say that it would be just and equitable for any application to proceed which was presented within a reasonable time after the applicant knew or ought to have known that she had a claim which, after taking advice, she would have realised stood a fair prospect of success. Another way of putting the point would be to say that the correct question in these cases is to inquire when each one of these applicants, with the requisite knowledge and access to proper advice, might reasonably have been expected to have presented a complaint to an industrial tribunal arising out of her `retirement'.

In this case, the answer must be either:

(a) at any time after 7 November 1987, when section 6(4) of the Act was repealed; or

(b) at any time after 12 July 1990, the date of the decision of the European Court of Justice in Foster , which is the date from which NALGO members, who were in touch with their Union, were advised to sign application forms.

The choice between these two dates depends upon a resolution of two conflicting principles:

A person is deemed to know the law and cannot rely upon his ignorance of it to his own advantage;

It is not just and equitable to deprive a person of his rights when he is reasonably ignorant of them.

If the first principle is rigorously applied, time would have expired for all applicants on 6 February 1988 being three months after the women had a claim under the Sex Discrimination Act . At that date there was a decision of the EAT, in relation to British Gas, to the effect that a nationalised industry was not an emanation of the state and that there was no merit in referring that question to Europe. Thus, any application to an Industrial Tribunal by these applicants would have been bound to fail. Therefore, at best, had such applications been made, they would have been stayed pending the Court of Appeal's decision in Foster . After that Court's judgment, and refusal of leave to appeal, it is likely that an Industrial Tribunal would have been persuaded to dismiss any pending complaints as being manifestly hopeless. Any competent adviser would, if asked, have cautioned these applicants that they would be wasting their time to make a complaint unless the Court of Appeal reversed the decision of the EAT. `Protective' applications might have been lodged; but this would have been a counsel of perfection. There is, regrettably, no class action procedure in the Industrial Tribunal Rules of Procedure. The cost of gathering in complaints from retired members, not all of whom would have been readily contactable, cannot be dismissed as negligible. Lodging complaints purely to protect a person against the risk that his or her claim might be dismissed on time grounds will also cause the Industrial Tribunal trouble and expense. The complaints need to be processed and acknowledged; complaints may be lodged in several of the regions and they will then require to be co-ordinated in some way, and that is not always straightforward. In this case, for example, the process of consolidation required the intervention of the EAT. There are instances where mass applications are lodged without the complaint form disclosing a named representative, and, in such a case, before any attempt can be made at co-ordination, all the individual applicants must be written to separately, and notified of hearing dates and so forth. Therefore, administrative convenience would militate against a conclusion that required parties to lodge `protective' applications. But that factor cannot, we think, persuade us to reject the first principle, if it were otherwise correct to do so. Adoption of the first principle would involve holding that it would be just and equitable that a person who neither knew nor ought to have known that he or she had a claim which had a reasonable prospect of success should have presented such a complaint or else lose the right to relief.

It is our view that there is no absolute principle, as contemplated. The concepts of justice and equity import concepts of fairness and realism. It is, we think, neither just nor equitable to expect every litigant to have the perspicacity and tenacity of Miss Marshall or Mrs Foster. It is not unreasonable for litigants to await the outcome of pioneering litigation. The alternative would be to expect every potential claimant to undertake a formal step, namely the presentation of a `protective complaint' (for which there is no procedure), not with a view to it being progressed but rather with a view simply to preserving time. We are not prepared to say that a person who refrains from acting in that way, but who reacts promptly after the point of principle has been resolved, deserves to be deprived of her relief. In our view, justice and equity permits all these applicants to await the outcome of the decision in Foster . Had NALGO not been as diligent, we think it likely that applicants who had awaited the outcome of the decision in the House of Lords could have been excused for doing so.

However, a person who awaits the determination of a point of principle affecting him or her is obliged, in our view, to move with proper speed thereafter. Delay is inimical to the doing of justice, and having waited, it is incumbent on that party to press ahead.

The individual cases

We can now turn to the individual cases. We can say at once that Mr Cavanagh very properly did not feel able to justify the conclusions arrived at by the Tribunal Chairman in relation to the following 6 applicants, to whom we shall refer, if we may, by their surnames: Kemp, Faulkner, Mellor, Carte, Broadbent and Bennett. In all these cases the Industrial Tribunal has applied the general principle contained in paragraph 41 of the Decision regardless of the individual's state of knowledge. It seems to us that on the facts of these cases there was no reason in justice or equity why their claims should be allowed to proceed, subject, of course, to the question which we have referred to Europe. There is no appeal in the two cases which the Industrial Tribunal dismissed: Marshall and Barnes.

That leaves 45 cases which were allowed to proceed. We shall deal briefly with those of the 45 which we were specifically asked to consider.

Frost/Hudson/Crossfield: each of these applicants signed their applications on 28 March 1990 some 4 months or so before the decision of the European Court in Foster and before the Union's circular. The Chairman of the Industrial Tribunal said this [paragraph 62]:

"In practical terms, rather than practicable terms, it was very sensible in my view for NALGO to wait at least until there was some indication that there might be a reasonable prospect of success. I do not think it would be just and equitable to deny Mrs Frost a hearing simply because the solicitors department of NALGO took what was an eminently sensible view, also bearing in mind that the law, as it then stood, would have meant that Mrs Frost's application was doomed to failure."

In each of the three cases the same reasoning applies. Each application was lodged promptly after the decision of the European Court. We agree with what the Industrial Tribunal said and have nothing to add.

Theobald/Wimbush/McDonald: in each of these three case, the applications were presented more than three months after becoming aware of the Foster decision. As we have already stated, we consider that the longer the previous delay the quicker the applicant must get on with the case. But it is for the Industrial Tribunal to consider the facts of each case. In the case of Theobald, she read an article in June 1991, having not become aware of the earlier communications from the Union, which is not surprising in view of the fact that we are considering a population of retired persons, and delayed until November. We regard this case as being borderline and are of the view that other industrial tribunals might have taken a different view from Mr Rich. But we are satisfied that he applied his mind to the section and to the facts of this particular case and cannot say that he misdirected himself in arriving at this conclusion. In relation to Wimbush, there was an administrative muddle. She said she had read about the case in October 1990 and had sent back the form. It appears that it was not until the schedule of applicants was being prepared for the hearing that it was realised that the form had not been formally presented, although a photostat of her claim form was on the file. It is not clear whether there has been an error in the Tribunal Office or in NALGO's offices. Again this was a difficult decision and we cannot fault the decision of the Chairman [paragraph 98]. In the case of Mrs McDonald, the Chairman found that the applicant

"herself had acted with great promptitude. There does seem to have been some minor problem at the National Office of NALGO. I do not think, however, that that delay, of what was, in fact, a few weeks in the overall period, is sufficient to say that it is not just and equitable to hear this application."

Apparently this applicant lived and worked in a remote part of Scotland and had no union official close by. Again we can see nothing wrong in principle with the way the Chairman approached the case.

There is a group of four cases Siddell/Haines/Davison/Travers where it is argued that there was no evidence to show that the application was presented within three months of her becoming aware of her right to make a complaint. In the first two cases the complaints were presented within three months of the decision of the European Court in Foster . The point made is academic in relation to them, we think. In relation to Davison the Chairman held as follows [paragraph 92]

"Therefore, on a balance of probability, I consider that the 1992 article was the first indication that she had had and therefore she acted very promptly."

In the light of that finding the decision under section 76(5) was fully justified. It was part of Miss Slade's submissions that the Industrial tribunal were wrong to place weight on affidavit evidence where the facts were in issue. We do not agree. It was a matter for the Chairman as to the help or weight he derived from this form of evidence. As to Travers, she read the October edition of the Union's magazine, obtained an application form, completed it in November 1990 but for some reason it was not presented for a further 8 weeks. We consider that the Chairman's decision in this case cannot be faulted even if other tribunals might have reached a different conclusion on the same facts.

Miss Slade also raised points in relation to the following 6 applicants: Hands/Singleton/Ellis/Shea/Ornsby/Donald. In relation to Mrs Hands [paragraph 76] she signed her application in August and it was presented on 14 September 1990. The complaint is that she does not seek to explain the delay between signature and presentation. With respect, we do not understand why this makes the conclusion of the Tribunal erroneous in law.

Mrs Singleton's case was described by the Chairman as "marginal" [paragraph 82]. She presented her application in October 1992. There had been a two year delay, through no fault of hers, after she had sent a letter to the Branch Secretary in September 1990. She thought the letter had been passed to the Union's legal department but it was only two years later that she realised that that had not happened. She can be criticised for not chasing the matter up, but after accepting what she said in her affidavit as the truth, the Chairman said this:

"There could, of course, be criticism of her in not pursuing the matter between September 1990 and September 1992, but, in the light of the conduct of the litigation in this affair ... that does not surprise me. This is a marginal case, but I think, on balance, in the light of the clear indication that Mrs Singleton believed her application was proceeding from September 1990, it is just and equitable that it should be considered."

We reject the submission that this decision was perverse. This is precisely the sort of issue with which tribunals of fact have to deal. We do not consider it perverse to conclude that a lay person might think that there was nothing surprising about lawyers taking two years to deal with a matter. In relation to Miss Ellis, the complaint that is made is that the Tribunal did not have an explanation for the delay between 13 July 1990 and the presentation of her complaint on 4 October 1990, and therefore the decision to extend time in her case was perverse. We do not agree. The same applies to the case of Miss Shea where there was a delay of two months between the date of knowledge and the presentation of the complaint on 2 October 1990. In relation to Mrs Ornsby [paragraph 95] her date of knowledge was July 1991, her application was dated 7 August 1991 and was presented on 6 September 1991. We cannot see any merit in the appeal against the decision of the Chairman in her case. In relation to Mrs Donald [paragraph 99] the Tribunal found that she acted with all reasonable speed and, again, we do not understand the basis for the complaint about this decision.

It follows, therefore, that we allow the appeals in relation to the six cases and rule that they were presented out of time and that it would not be just and equitable to extend time. But otherwise we dismiss all the other appeals on the specific cases.

SUMMARY OF CONCLUSIONS

We may summarise our conclusions on the various questions which we raised earlier in this Judgment:

Ought we to allow the applicants to argue that the employers are not entitled to rely upon a time limit point in respect of any application presented to an Industrial Tribunal time before 22 November 1993, even though that was not an argument adjudicated upon by the Industrial Tribunal? Yes

Should we refer that issue to Europe? Yes

Is there any time limit at all? Yes, that contained in section 76 of the Act.

Did time start running before the decision of the House of Lords in Foster , namely 18 April 1991? Yes, time started to run either at the date of the applicants' retirement or on 7 November 1987.

Did the Industrial Tribunal err in law in the exercise of its discretion under section 76(5) in relation to any or all of the applicants? Yes, but only in relation to the cases of Kemp/Faulkner/Mellor/Carte/Broadbent/Bennett.

In the light of our conclusions on the five matters what orders should we make?

A. A reference to the European Court; counsel have been invited to draft the question.

B. An order that the respondents appeal in relation to the six named cases be allowed and that an order be drawn up dismissing those applications subject to the outcome of the reference to the European Court; otherwise an order that the appeals be dismissed.

ANNEX A

CHRONOLOGY PREPARED BY THE EAT

February 1976 Equal treatment Directive

18 November 1978 to 19 May 1987 the Applicants retire

26 February 1986 ECJ decision in Marshall No 1

July 1986 EAT decision in Foster

November 1987 Section 6(4) of the Act repealed

13 May 1988 Court of Appeal decision in Foster

May 1989 House of Lords refer Foster to Europe

21 March 1990 First application to IT [Mrs Humphrey]

12 July 1990 European Court's decision in Foster

24 August 1990 26 applications presented to the

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October 1990 Industrial Tribunal

25 October 1990 7 applications presented to the

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31 December 1990 Industrial Tribunal

January 1991 11 applications presented to the

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17 April 1991 Industrial Tribunal

18 April 1991 House of Lords judgment in Foster

26 April 1991 4 applications presented to the

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18 July 1991 Industrial Tribunal

September 1991 Mrs Ornsby's complaint presented

26 August 1991 Mrs Macdonald's complaint presented

January 1992 5 applications, excluding the one withdrawn,

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20 November 1992 presented to the Industrial Tribunal

31 March 1993 Miss Wimbush's complaint presented

14 July 1993 First Decision of the Industrial Tribunal

August 1993 Decision of European Court in Marshall No 2

22 November 1993 Remedies Regulations take effect

18 April 1994 EAT adjourns the appeal and remits back to IT

December 1994 Second Decision of Industrial Tribunal

ANNEX B

SCHEDULE OF APPLICANTS IN DATE ORDER OF

PRESENTATION OF CLAIM

RASTALL & OTHERS - V - MIDLANDS ELECTRICITY PLC & OTHERS

Name of Applicant Respondent Retirement Date Date Application

presented

Up to 12th July 1990

Mrs E M Humphrey Eastern Electricity plc 14.07.86 21.03.90

13th July - 31 August 1990

Mrs E M Dunn Midlands Electricity plc 08.04.82 24.08.90

1st September - 12th October 1990

Mrs J Frost SEEBOARD plc 09.04.82 04.09.90

Miss E O Crossfield SEEBOARD plc 23.09.82 04.09.90

Mrs M J Coldicott Midlands Electricity plc 23.09.86 04.09.90

Miss M C Dutfield Midlands Electricity plc 19.05.81 04.09.90

Mrs M J Fryer Midlands Electricity plc 30.01.81 04.09.90

Mrs I M Miller Midlands Electricity plc 17.03.79 04.09.90

Mrs L M T Nicholson Midlands Electricity plc 25.09.81 04.09.90

Mrs M M Siddell Midlands Electricity plc 02.03.82 04.09.90

Mrs M E Price Midlands Electricity plc 20.11.82 04.09.90

Mrs J F Rastall Midlands Electricity plc 23.10.81 04.09.90

Miss D M Robinson Midlands Electricity plc 25.11.81 04.09.90

Mrs L V Hudson SEEBOARD plc 07.02.84 04.09.90

Miss I D J Hands PowerGen plc 22.02.80 04.09.90

Mrs G M Coxon Yorkshire Electricity Group 02.09.94 04.09.90

Mrs L G B Asquith Yorkshire Electricity Group 18.11.78 13.09.90

Mrs A M Lee Northern Electric plc 12.02.83 25.09.90

Mrs D M Whittington SEEBOARD plc 21.03.83 01.10.90

Mrs M A Snowden NORWEB plc 29.04.81 02.10.90

Mrs L Haines (dec'd) Midlands Electricity plc 25.05.79 04.10.90

RASTALL & OTHERS - V - MIDLANDS ELECTRICITY PLC & OTHERS

Name of Applicant Respondent Retirement Date Date Application

presented

Mrs S M Taylor East Midlands Electricity plc 19.12.86 01.10.90

Mrs E Humber East Midlands Electricity plc 12.09.81 10.09.90

Mrs E D Newman East Midlands Electricity plc 11.03.81 02.10.90

Miss J D Sutcliffe(dec'd) NORWEB plc 09.03.83 02.10.90

Miss M A Shea London Electricity plc 21.07.83 02.10.90

Miss D F Ellis London Electricity plc 07.08.83 04.10.90

13th October - 18th April 1991

Mrs E A Reynolds National Power PLC 10.08.85 06.12.90

Mrs E Donald Scottish Power plc 15.09.85 07.12.90

Miss M Small Scottish Power plc 19.06.83 21.01.91

Miss L Lawson Scottish Power plc 24.05.82 01.02.91

Mrs R Dickson Scottish Power plc 03.12.79 21.01.91

Mrs C M Moir Scottish Power plc 07.04.87 23.01.91

Mrs C Heuston Scottish Power plc 28.08.86 01.02.91

Mrs M Brawley Scottish Power plc 12.04.79 21.01.91

Mrs H M Faulkner SEEBOARD plc 03.01.86 15.03.91

Mrs A M Dagger SEEBOARD plc 30.11.81 25.10.90

Mrs D J Broadbent NORWEB plc 25.09.80 16.04.91

Mrs G M Cooper Eastern Electricity plc 07.05.81 04.12.90

Mrs M E Hosken Eastern Electricity plc 06.01.83 06.12.90

Mrs J A Snook Eastern Electricity plc 15.08.87 06.12.90

Mrs D A L Joyce-Nelson Eastern Electricity plc 29.12.86 17.01.91

Mrs A Kemp SEEBOARD plc 08.07.82 15.03.91

Mrs M R Travers London Electricity plc 20.11.85 21.01.91

Mrs E Carte NORWEB plc 30.06.81 06.12.90

RASTALL & OTHERS - V - MIDLANDS ELECTRICITY PLC & OTHERS

Name of Applicant Respondent Retirement Date Date Application

presented

19th April - 18th July 1991