MRS B HALL v (1) MR F LARGE (2) SIMIA FARRA & CO [2001] UKEAT 358_99_0512

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 358_99_0512Case No Appeal No. EAT/358/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS B HALLAPPELLANT(1) MR F LARGE (2) SIMIA FARRA & CORESPONDENT
Before
Mr Justice Maurice Kay Ms N Amin Professor P D WickensDate 5 December 2001
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondents MR F LARGE MR JUSTICE MAURICE KAY: This is an appeal from a decision of an Employment Tribunal sitting at Stratford on 19 November 1998 on which occasion the Tribunal decided that it did not have jurisdiction to hear the appellant's complaints about unlawful deductions from wages or under the Equal Pay Act 1970 (" The Act ").[2]The matter has something of a history. The appellant originally lodged a form IT1 in January 1997. In box 1 of that form she listed her types of complaint as "unfair dismissal, sex discrimination". In the details in box 12 she alleged that she had worked overtime but had not been paid for it whereas her male colleague had. She further alleged "He was employed to do the same work as me but was on £500 more than me." It is clear from the findings of fact that that is a reference to £500 a year.[3]That application led to a hearing on 6 July 1998. So far as the sex discrimination case is concerned, the appellant was successful and the respondents were ordered to pay her a total of £3,180. The Tribunal included in its findings of fact the differential salaries to which we have referred and also the point about overtime pay. The Tribunal said of the latter:
"The applicant did not make out a precise claim in respect of unpaid overtime. We accepted her evidence that it totalled 30-40 hours, but cannot make a financial award on that rather vague basis. We have determined to deal with this rather amorphous claim by letting it fall within the injury to feelings claim, since it undoubtedly did resound in that way."
[4]Some time later the appellant wrote to the Employment Tribunal on 10 September 1998 raising the questions of unlawful deductions from wages, namely, overtime, and breach of the Act . Those matters were listed before the Tribunal on 19 November 1998 to be considered as a preliminary hearing in respect of jurisdiction. The point that has been taken on behalf of the employers was that the claims were out of time and/or had been dealt with on the first occasion.[5]It is abundantly clear that the matter of overtime had been dealt with on the same occasion in the paragraph which we set out above when the first Employment Tribunal decided to compensate that loss by including it in the award for injury to feelings. What then about the claim under the Act . In the first application the appellant had referred to the £500 differential. In its Extended Reasons the Employment Tribunal which dealt with the matter on 6 July 1998, said:
"However, this has not been presented as an equal pay claim and we have not conducted the full, rigorous analysis of the similarities and differences in the work which we would have performed if it were. Rather, the Applicant relies upon the pay differential as something from which we should infer that a man was treated more favourably."
[6]Mr Large, on behalf of the respondent, submits to us that that shows that the opportunity had been there for the matter to be pursued as an Equal Pay Act claim first time round but that it was disposed of in the way to which we have referred. He submits that in fact there had never been a claim under the Act at that time, merely a reference to a pay differential as part of the evidence of sex discrimination and that the letter of 10 September 1998, by which the appellant sought to initiate a claim under the Act was way out of the time, the particular time limit not being extendable.[7]In our judgment, there is great force in that submission. We can find nothing wrong with the second Employment Tribunal determination dated 19 November 1998, declining jurisdiction. We should add to that, that if there had been something in this appeal, then on any basis, it could not have resurrected the overtime point and, at its very highest, it would have related to the salary differential. The reality of that is that, again taking the appellant's case at its highest, the salary differential was £500 per annum. The appellant was only employed for three months and it follows from that, that the most her claim under the Act could have been worth would have been £125.[8]We have dealt with this case today notwithstanding the absence of the appellant. That absence was explained by a telephone call to the Employment Appeal Tribunal administration, we think some time earlier this morning. The explanation was that the appellant is ill and seriously ill. We do not doubt that explanation, although we wonder whether it would not have been possible for the appellant to present her case by submissions in writing or by some voluntary representation.[9]The explanation was accompanied by a request for an adjournment. Having regard to the procedural history of this matter, we decided that the interests of justice did not warrant an adjournment in the present case. The appeal was about an extremely modest sum of money. The respondent is present and represented through its Personnel Adviser, Mr Large.[10]Above all else, however, we have concluded that upon any basis this is an appeal which cannot and would not succeed even if there were an adjournment. Taking what we believe to be a proportionate view of the situation, we are driven to the conclusion that an adjournment would not be in the interests of justice, indeed, it would not be in the interests of Mrs Hall if the matter were delayed further only to produce the result which we consider inevitable, namely, the dismissal of her appeal.