MRS J HUNT v (1) ST HELENS BOROUGH COUNCIL (2) MRS P WOODHOUSE [2001] UKEAT 0268_01_2707

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0268_01_2707Case No Appeal No. EAT/0268/01 & EAT/0399/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS J HUNTAPPELLANT(1) ST HELENS BOROUGH COUNCIL (2) MRS P WOODHOUSERESPONDENT
Before
Mr Justice Douglas Brown Mrs A Gallico Mr W MorrisDate 27 July 2001
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT MR JUSTICE DOUGLAS BROWN There is no appearance here today by the 2 Appellants which causes us no surprise as the Registrar was informed some days ago by letter that they would not be appearing. These are 2 appeals from a decision of the Employment Tribunal in Liverpool, Chairman, Mr D Reed, the Extended Reasons being given on 12 January 2001. The Tribunal decided that the equal pay claims brought by Mrs P Woodhouse and Mrs J Hunt were presented out of time. Neither appeared, as we have said, on this Preliminary Hearing.[2]The facts are the same in the case of both Appellants. The Appellants were employed by the Respondent Council for many years as kitchen assistants preparing school meals. At the relevant time neither was a member of a trade union. In 1998 a large number of claims were submitted by a trade union on behalf of employees of the Council for equal pay but the Appellants made no claim. They were told informally that they would be entitled to back pay representing the adjustment over equal pay. By the time Mrs Hunt left the Council's employment in December 1998 and Mrs Woodhouse left in March 1999 they had received no back pay. They hoped and expected that they would benefit from the claims being made by the union for other catering staff. As the Tribunal found, neither Appellant took any step to pursue any claim with the Council until at the earliest November 1999 when they were told that payment was likely to be paid to them and specific sums were mentioned. No payments were forthcoming, so they both presented their Originating Applications in May 2000.[3]The claims were sought to be made under the Equal Pay Act 1970 . However, Section 2 subsection (4) of that Act is in these terms:
"No claim in respect of the operation of an [equality clause] relating to a woman's employment shall be referred to an [employment tribunal] otherwise than by virtue of subsection (3) above, if she has not been employed in the employment within the six months preceding the date of the reference."
Subsection (3) has no relevance here in that it covers the situation where a court in which proceedings have been started may transfer the proceedings or refer them to an Employment Tribunal. We observe, as the Tribunal did, that unlike, for example Section 111 of the Employment Rights Act 1996 there is no, as the Tribunal called it, 'escape clause' to enable the Tribunal to admit a late application. In their reasons the Chairman said this: "There is a residual power to extend time limits such as these in exceptional circumstances, for example when there has been fraud on the part of the respondent. No such situation can have been said to exist here, or at lest not until well after that 6 month period had expired. They then came to the conclusion that both applications were out of time and were dismissed.[4]It is a great pity that these Appellants did not seek advice before or at the time of their leaving the Council's employment. Failure to make a claim within 6 months of leaving is an effective bar to any entitlement. We would observe that even if the claim had been entertained by no means would it follow that they would have succeeded. In their IT3 the Council said that liability was disputed in all of the nearly 300 applications received for back pay.[5]The Grounds of Appeal we regret to say expose no error of law on the part of the Tribunal and at this stage this appeal cannot proceed further to a Full Hearing and is dismissed.