Sirdar v Ministry Of Defence [1995] UKEAT 978_95_1509

EAT

Sirdar v Ministry Of Defence

[1995] UKEAT 978_95_1509 · 1995-09-15

JUDGE HICKS Q.C. :

This is a highly unusual appeal in a number of respects. It is an appeal by the applicant, Mrs Angela Maria Sirdar against the refusal of the Chairman of the Industrial Tribunal to postpone a hearing of her application on the grounds of sex discrimination listed for Tuesday, 19th September in the Industrial Tribunal.

It is unusual in that when made to the Industrial Tribunal it was supported by the respondents and nevertheless was rejected, and it is further unusual in that this appeal is not even presented by the appellant herself because, we understand, of her position as regards funding and legal aid, or the absence of it, but is effectively promoted by the respondents through Mr Carr.

The background to the substance of the application can be stated very shortly. Mrs Sirdar was a serving member of the Army for several years, I think as many as ten. She was lately serving in the Army Catering Corps as a cook or a chef. She was made redundant from that position because of an excess of chefs in the infantry. She was then ostensibly offered the opportunity of applying for a position as a chef in the Royal Marines, only to be told later that that was a mistake and that the position of chefs in the Royal Marines was open only to male applicants. On the face of it, and I do not think that this is disputed, there is clear sex discrimination; the real dispute is going to be whether that discrimination is justified by Section 85(4) of the Sex Discrimination Act 1975 which although now part of that Act has become so only by a very recent amendment, and which provides:

"Nothing in the Act shall render unlawful an act done for the purpose of ensuring the combat effectiveness of the naval, military or air forces of the Crown."

It is plain that among other issues Mrs Sirdar is going to raise the issue of whether that Section is lawful under European legislation against Sex Discrimination. It manifestly, as Mr Carr has told us, raises issues of great importance not only to the appellant (which must not be forgotten) but also to the Ministry of Defence generally and, indeed, may be of interest to other members of the European Community as well.

The Notice of Application was received by the Industrial Tribunal on 19th May 1995, and the hearing date that I have mentioned having been fixed by notice dated 14th July 1995, both parties applied for a postponement, the respondents as many as three times, the latter applications being coupled with an alternative application that the hearing be treated as a hearing for directions. The hearing date had in fact been fixed before the Notice of Appearance by the respondents, and indeed that Notice of Appearance took its present form only on 30th August 1995.

The Chairman rejected all applications for postponement, and the one against which this appeal technically arises contains no reasons; it simply reads:

"Postponement refused. The application can be renewed on 19 September 1995."

But whereas that is of no assistance as to the reasons or the matters taken into account by the Chairman we think that it plainly is possible to have regard to the terms in which he had rejected the respondent's alternative application - that the matter be limited to directions - which he had dealt with in a letter 12th September 1995, only three days earlier, in which, on his direction, the Regional Secretary wrote:

"I see no reason why the hearing on 19 September 1995 should be limited to Directions. The primary facts do not seem to be problematical and the bulk of the hearing is likely to be devoted to matters of law. there is ample time for submissions to be prepared and authorities exchanged. It may be that the case goes part-hearing; so be it."

Now, as Mr Carr has persuasively put to us, exceptionally there does seem ground for inferring from those reasons that the Chairman has not taken into account a relevant matter, namely that the primary facts are far from problematical, and that that is really not just a matter of judgment or opinion but absolutely plain, because although the primary facts in the sense of what was written to Mrs Sirdar in answer to her application are indeed plain and simple, the facts - and they are primary facts which need to be investigated in this case - involve all the facts which go to the issue whether, in the terms of the statute, the act done by the respondent in rejecting Mrs Sirdar's application was indeed done for the purpose of ensuring the combat effectiveness of the naval, military or air force of the Crown, and of course that, as we understand it, goes not simply to whether that was indeed the motive, but whether there truly could be said to have been a legitimate purpose to be achieved by that policy in ensuring the combat effectiveness of the forces.

We take the view therefore that although, as Mr Carr accepts, it is very exceptional for this Tribunal to be able to take such a view on a procedural decision by the Industrial Tribunal, it does appear that a very relevant fact was not taken into account by the Chairman or, which comes to the same thing, quite plainly misunderstood. Although we have considered whether it would be enough simply to let the parties attend on 19th September 1995 on the basis of some direction from us (if it were within our jurisdiction) that ensured that the expense of preparing for a factual hearing was not incurred, we have come to the conclusion that the only satisfactory course is to allow the appeal and vacate the hearing date, and we are the more persuaded that that is the correct course by Mr Carr's submission (in effect on behalf of the appellant rather than of his own client) that the appellant and it seems a perfectly proper and appropriate course, is seeking to enlist the concern of the Equal Opportunities Commission, and is meanwhile operating only on the Green Card system of legal assistance, and therefore that it would be potentially a substantial hardship to her if she had to do what she could to prepare ostensibly for a full hearing next Tuesday, when for the reasons which we have given that would not be appropriate.

We have expressed our reasons why we feel it possible and right in this case to allow the appeal. Of course to say that an Industrial Tribunal has gone wrong in law does not normally entitle this Tribunal to substitute its own decision, but when one is concerned with a hearing which is to start next Tuesday it is quite apparent that for us to substitute what we consider right is really the only conceivable way of dealing with an appeal which has been allowed, and that is our reason for not only allowing the appeal but also making a substantive order to vacate the hearing date.