Thomas v The National Training Partnership Ltd [1996] UKEAT 1126_95_1803

EAT
Thomas v The National Training Partnership Ltd
[1996] UKEAT 1126_95_1803 · 1996-03-18
MR JUSTICE HOLLAND : This is an appeal from an Industrial Tribunal sitting at Sheffield on 9th August 1995. The decision was sent to the parties by way of extended reasons dated 1st September 1995.The tribunal had before it two complaints submitted by the appellant by way of her IT1 namely, unfair dismissal and sex discrimination. Their decision is as follows:

"The unanimous decision of the Tribunal is that:-

i) That the applicant's request for an adjournment of this hearing is refused;ii) That the applicant was employed by the respondents from the 15 February 1993 until the 20 January 1995 and that she does not have 2 years continuous employment so as to be entitled to claim that she was Unfairly Dismissed;iii) That the applicant's complaint that she was harassed on the grounds of her sex by Mr Phillips, an agent of the respondent, is out of time and that it would not be just or equitable to consider that complaint;iv) That the applicant's claim that she was discriminated against on the grounds of her sex in that she was dismissed on the 20 January 1995 is rejected."Two points are taken by way of the appeal. Succinctly expressed in the Notice of Appeal they are as follows:
"1. The ground of appeal are twofold. Firstly that the Industrial Tribunal failed to adjourn the hearing at the request of the Appellant whose request was made because the Court of Appeal's decision in R -v- Secretary of State for Employment ex-parte Seymour-Smith 1995 IRLR 464 . Secondly that the tribunal misdirected itself in failing to consider the Appellant's case under Article 119 of the Treaty of Rome, in the light of the finding in R -v- Secretary of State for Employment ex-parte Seymour-Smith 1995 IRLR 464 that the qualifying period of 2 years for bringing a case for unfair dismissal was discriminatory and therefore unlawful."
The first point thus taken, arises out of the following chronology. On 31st July 1995 the decision now reported as R v Secretary of State of for Employment ex-parte Seymour-Smith [1995] ICR 889 was first published. Before and at the inception of the hearing on 9th August 1995, Mrs Hobson, then appearing for the appellant, sought an adjournment from the tribunal in reliance upon Rule 13 (7) Schedule II Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993 . That application is referred to in the extended reasons in the following terms:
"4. The first matter that we have to decide is whether or not to grant the applicant's request for a general adjournment of this case. The basis of the request in that by a decision handed down on the 31 July 1995 the Court of Appeal in R -v- Secretary of State for Employment ex-parte Seymour-Smith had ruled that the 2 year qualifying period for Unfair Dismissal claims as laid down in section 64(1)(a) of the Employment Protection (Consolidation) Act 1978 discriminates against women. Mrs Hobson for the applicant argued that it is probable that the law will be changed as a result of the Court of Appeal decision and that in consequence the applicant may at some future date be entitled to re-open her claim against the respondents if it is rejected today for lack of the qualifying period of employment. For the respondents Mr Kennedy argued that we should decide the case on the basis of the law as it is now and not adjourn for some undefined period in case a change is made. We unanimously accept the arguments of the respondents. We think that the case should be heard today and we refuse the application for an adjournment."
It is that decision that is challenged by way of this appeal. It is helpful to commence consideration of the point thus raised by acknowledging the guidance given to this tribunal by the Court of Appeal in Carter v Credit Change Ltd [1979] ICR 908 :
"the decision of an industrial tribunal in the exercise of their discretion ... to postpone the hearing of a complaint could only be reversed on appeal if it was shown that the tribunal had erred in law in the sense that they either misapplied the law or their decision was so surprising that it could be characterised as perverse or one that no reasonable tribunal could have come to; that, although the need for a speedy hearing of a complaint of unfair dismissal was an important factor to be taken into account, there was no principle that an industrial tribunal should only postpone the hearing of a complaint if there were special reasons or unusual circumstances ..."
From that case we infer that a very strong argument has to be raised before it is appropriate for us to allow an appeal on this ground.Turning to this case, and the need to look at the way in which the tribunal exercised its discretion, it is helpful to balance the advantages, if any, of the adjournment which was sought, against the disadvantages that would thereby arise.What then are the advantages that one can discern? That depends upon the relevance of the decision of the Court of Appeal in R v Secretary of State for Employment ex-parte Seymour-Smith and upon the prospects for development of the law arising out of the further progress of that case or indeed, arising out of the reaction of the legislature to the principles thereby laid down. It therefore behoved this tribunal to look with some care at that case. As to what it was about, we can summarise as follows. Both the appellants before the Court were female, and both had been dismissed after less than two years service respectively on dates in May 1991. Both were accordingly unable by reference to domestic law to bring complaints for unfair dismissal. That state of affairs arose from the relevant provisions of the Employment Protection (Consolidation) Act 1978 , thus Section 54(1):
"(1) In every employment to which this section applies every employee shall have the right not to be unfairly dismissed by his employer."
Section 64(1):
"(1) ..., section 54 does not apply to the dismissal of an employee from any employment if the employee- (a) was not continuously employed for a period of not less than two years ending with the effective date of termination, ..."
It is material to note, that the words "two years" as they appear in Section 64(1) were there inserted by way of the Unfair Dismissal (Variation of Qualifying Period) Order 1985. The appellants in R v Secretary of State both sought judicial review of the effect of that Order, contending that such was indirectly discriminatory against women, contrary to the Equal Treatment Directive 76/207/EEC, since fewer women than men were able to comply with it. The Divisional Court had dismissed their applications. In the decision of 31st July 1995 the Court of Appeal allowed the appeal.As is apparent from the following passage they decided not to quash the Order, but directed themselves that it was appropriate to consider declaratory relief, thus at 941:
" We are satisfied, for the reasons set out by Balcombe LJ in his judgment, ante, p 902, that it would be quite inappropriate to quash the Order of 1985. These reasons can be summarised as follows.
(1) It is not suggest that the Secretary of State had no power to make the Order of 1985. The applicants' complaint relates to the effect of the Order.(2) In the Act of 1978 in its original form the qualifying period was 26 weeks. The period was subsequently increased by statutory instrument to its present level of two years. If the period has been contained in primary legislation the court would have had no power to quash that legislation: it could only declare that its provisions were incompatible with the provisions of the Equal Treatment Directive.(3) The applicants' claim if for compensation for unfair dismissal. It follows therefore that if the Order of 1985 is incompatible with the Equal Treatment Directive they may well have a claim for damages against the United Kingdom for failing to implement that Directive ...(4) At the time when the applicant were dismissed the Order of 1985 had already been in force for about six years. If the Order were quashed countless past transactions might have to be reopened. It is quite plain that the quashing of the Order of 1985 would be likely cause financial hardship and would undoubtedly be detrimental to good administration.In addition there is a fifth reason why an order to quash the Order of 1985 would be inappropriate. The essential issue in this case is whether the two-year rule, as it operated at the dates of the applicants' dismissals was incompatible with the Equal Treatment Directive. We are concerned with the effect of the qualification period in so far as it affected the two applicants at a particular time. As will become apparent later, the statistics which can be relied upon to prove indirect discrimination do not remain constant. Thus it may be that at a different time the statistics would point to a different result.We turn therefore to the alternative claim, which is a claim to certain declarations. It was argued on behalf of the Secretary of State that a declaration would be of no assistance to the applicants because the industrial tribunal would still be bound to apply the time limit set out in the Order of 1985. We have come to the conclusion, however, that if the applicants can establish that the Order of 1985 is indirectly discriminatory and that there is no objective justification for that discrimination they would be entitled to a declaration to that effect."Having thus directed itself, the Court of Appeal went on to consider the evidence that was before the Divisional Court and before it. In the result, the conclusions at page 956 were as follows:
" (3) We consider that on the evidence presented the applicants have demonstrated that at the time of their dismissals the effect of the two-year qualification period was incompatible with the principle of equal treatment enshrined in the Equal Treatment Directive.
(4) We do not consider that the Secretary of State on the evidence presented has established objective justification for the discriminatory impact of the two-year qualifying period.(5) We consider that the applicants are entitled to an appropriate form of declaratory relief. We invite argument on the form of this relief.(6) We should emphasise that our conclusions are based on the present evidence. It may be that statistics relating to a different period would demonstrate a disparity which was less than considerable or, alternatively, the degree of disparity might be greater than that shown in this case. Furthermore, additional research might prove that an increase in the threshold had increased employment opportunities."Having thus analysed the great substance of this case, it is appropriate for this tribunal to take stock.Were there any advantages to the appellant, then the applicant, as at August 1995, rising out of this case which would have justified an adjournment? In our judgment, the case afforded her no present assistance and next to no prospective assistance. Given that the decision was a decision relating not to a complaint against employers for unfair dismissal, but an application for judicial review against a Secretary of State, there was nothing in the decision itself which was directly relevant. So far as about the point found, namely that the Order of 1985 as at May 1991 was discriminatory, that afforded no immediate assistance to Ms Thomas, and the prospective assistance was difficult to discern. If the matter goes to the House of Lords her position could only improve if the House of Lords take the step of quashing the Order, which step the Court of Appeal would not take. In our judgment, the prospects for the House of Lords taking that particular course are highly unlikely for the reasons that are well set out at page 902 of the judgment, which reasons we need not reiterate for the purposes of this judgment. Thus it is we can see no prospect whatsoever of her complaint against her employers receiving better treatment arising out of the future progress of the case.What then about the prospects of future legislation designed to deal with the points raised by the case? As to this, the prospects for such legislation have to be entirely speculative, and the chances of such legislation being retrospective so as to assist this appellant, must be regarded as absolutely minimal.In short, on the analysis thus far of this case, we can discern no or a mere minimal advantage in an adjournment to await the future progress of that decision.There is a further aspect to the decision and that happily is also referable to the second ground of the appeal. The matter arises by reference to Article 119 of EEC Treaty which is as follows:
"Each Member State shall ... maintain the application of the principle that men and women should receive equal pay for equal work.
For the purpose of this Article, "pay" means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer."Prior to the hearing in August 1995, a case had been reported Mediguard Services Ltd v Thame [1994] ICR 751 . The headnote repays reiteration:
" The employer was employed at a hospital as a cleaner, working 11 1 / 2 hours per week, from October 1989 until she was dismissed in February 1994. She complained to an industrial tribunal that she had been unfairly dismissed by her employer, a company to which the cleaning services at the hospital had been contracted out. The industrial tribunal determined as a preliminary issue that, notwithstanding that the employee did not have the period of continuous service required by section 64(1) of and Schedule 13 to the Employment Protection (Consolidation) Act 1978 in order to bring a claim under section 54 of the Act, it had jurisdiction to hear her complaint by reason of article 119 of the EC Treaty.

On appeal by the employer:-

Held , dismissing the appeal, that compensation for unfair dismissal was consideration received by a former employee, albeit indirectly, from her former employer in respect of her employment and, therefore, "pay" for the purposes of article 119 of the EC Treaty; that, accordingly, the applicant was entitled to rely in relation to her claim on the provisions of article 119; and that it being accepted that the qualifying condition for part-time employees prescribed by the Act of 1978 was indirectly discriminatory on the ground of sex and was not objectively justified, the relevant provisions were unlawful and could not prevent the employee's claim."That decision of this tribunal having been reported nonetheless this appellant as advised at the material time did not seek to avail herself of it. The result was that the IT1 made no reference whatsoever to Article 119 and there was no attempt to base her complaint upon that provision of the EC Treaty. As to this, we are quite satisfied that if she was to rely upon that basis for the complaint it should have been specified in the IT1 and that it was never therefore an issue for judgment in front of the Industrial Tribunal. Thus one starts by pointing out that the applicant in the first place was not relying upon it.That said, it is right to say that this point arose as a further matter for consideration by the Court of Appeal in Seymour-Smith . The Court of Appeal considering Article 119 disagreed with this tribunal in Mediguard Services Ltd so that the Court of Appeal held that the question as to whether compensation for unfair dismissal was "pay" for the purpose of Article 119 of the EC Treaty was not acte claire and, to that extent disapproved of the decision of this tribunal. Thus it is, once again, that the decision published on 31st July 1995 offered no assistance at all to this appellant, and there was no prospect for further assistance arising out of the future progress of the case which would have given her any advantage if had there been an adjournment.However, and in any event, there has been further consideration of this alleged basis of complaint by the Court of Appeal, this time in a recent decision Mary Biggs v Somerset County Council [unreported - 26th January 1996] . In course of a decision dealing with various points, one such was the place that Article 119 has in the context of claims for unfair dismissal. It is to be noted that in his judgment Sir Iain Glidewell ruled that Article 119 does not provide a free-standing basis for a complaint to an Industrial Tribunal, that is, it does not provide for a complaint which is outwith the provisions relating to time limits provided for by the Employment Protection (Consolidation) Act 1978. His view which does not appear to be in conflict with the views of the other two members of the Court, is that the only basis for a complaint to an Industrial Tribunal is by reference to the Act, that it is the Act which gives to an Industrial Tribunal jurisdiction over matters relating to unfair dismissal, and that there is no separate free-standing ground for complaint created by Article 119 of the Treaty. Thus it is that this further line of argument, bearing in part upon the first ground of appeal, but bearing entirely upon the second ground of appeal, is not one that we find has any merit at all.Turning back to our overall approach to this case. We can find no or only minimal advantage to an adjournment to await the future progress of R v Secretary of State for Employment ex-parte Seymour-Smith .Turning to the disadvantages of the adjournment, these are self-evident. The matter had come before the Industrial Tribunal when memories were relatively fresh. Had the Industrial Tribunal adjourned, we are advised it would have had to wait at least until July 1996 for a decision by the House of Lords and it plainly would have had to wait a great deal longer for any relevant legislation, even assuming that such could conceivably be retrospective so as to assist this appellant.Thus it is, that not only can we not categorise the decision of the Industrial Tribunal to refuse an adjournment as perverse, it is plainly a decision that in our respectful judgment was absolutely right on the material put before it. Thus it is that this appeal has to be dismissed.