MRS M E DAVIES v (1) SHROPSHIRE COUNTY COUNCIL (2) SECRETARY OF STATE FOR THE ENVIRONMENT [2002] UKEAT 973_02_2211

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 973_02_2211Case No Appeal No. EAT/973/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS M E DAVIESAPPELLANT(1) SHROPSHIRE COUNTY COUNCIL (2) SECRETARY OF STATE FOR THE ENVIRONMENTRESPONDENTS
Before
His Honour Judge D Pugsley Mrs A Gallico Hon Dr William Morris OjDate 22 November 2002
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant\ HIS HONOUR JUDGE D PUGSLEY This is an appeal by Mrs Davies from a Decision of the Employment Tribunal sitting in Shrewsbury. The circumstances were that the Applicant presented a complaint on 15 December 1994 that she had been excluded from membership of her employer's pension scheme, by reason of her status as a part-time worker.[2]The date on which her employment with that employer came to an end was 29 September 1993, which was more than six months prior to the commencement of these proceedings. The time limit for bringing such a complaint is six months from the ending of the relationship in question, with no provision for extending it in any circumstances.[3]By a letter dated 30 April 2001, the Applicant was invited to show cause why the complaint should not be struck out under Rule 15(2)(d) of the Employment Tribunals Constitution and Rules of Procedure Regulations 2001, on the grounds that as it must inevitably be fair, it would be frivolous or vexatious to pursue it.[4]The Respondent replied by letter dated 2 May by indicating that:
"5……..although I submitted the above application, it was not entirely relevant, since I was already a member of Shropshire County Council's pension scheme."
My complaint was in order to buy back years I was charged punitive contributions, which would not have been the case had I been allowed to join the pension scheme when I originally applied and was refused. I had to pay nearly £4000 to purchase some of these back years because of not being allowed to join the scheme, and I contend that the greater part of this amount should be refunded to me, with interest, or my pension increased."[5]There then ensued correspondence between the Tribunal, the applicant's representative, the applicant, and the two respondents ending with a letter from the applicant dated 30 April 2002.[6]The Tribunal wrote to the parties asking whether they wished the Chairman to make a decision based on the written representations already made or whether a hearing was required where oral evidence could be given. All parties agreed that the Chairman could make a decision based on the written representations already made.[7]The correspondence with the Applicant's husband, who acts for her, was such that the Tribunal found at paragraph 8 of the Decision that:
" …..the applicant has … failed to establish that the application was presented to the Tribunal within 6 months from the ending of the employment relationship in question. Further, by letter dated 2 May 2001, ….. it would appear that the applicant was stating to the Tribunal that her application was wrongly based in any event, and that she wished to complain about the size of the contributions that she was being asked to pay to the pension scheme. This letter was received by the Tribunal on 3 May 2001, in respect of a claim for return of monies by the first respondent allegedly paid by the applicant prior to the termination of her employment which she accepts finished on 29 September 1993."
[8]The Tribunal took the view that:
"Bearing in mind the applicant's complaint in respect of being excluded from membership of her employer's pension scheme is out of time ………. the Tribunal cannot see that it has any jurisdiction to entertain this aspect of the applicant's claim, in any event. …. the proposed amendment as suggested in the letter of 2 May 2001, is either consequent upon the original application, which is out of time, or is in respect of a new claim….. in respect of payments made before the end of the applicant's employment as long ago as 29 September 1993."
[9]They point out that if they were to allow this amendment, they could not see that the Tribunal, in any event, would have any jurisdiction to entertain such an amended claim if it was suggested that:
"…. the applicant's suggested amendment is a claim for breach of contract or under the Equal Pay Act 1970, in both those cases the applicant's amendment amounts to a totally new claim, and both are out of time."
The Tribunal decided that it accepted the submissions that had been made by the Respondents, and in the circumstances, they decided that this was an issue where they unfortunately had to take the view that there was nothing that they could do to allow this case to proceed.[10]We heard from Mrs Davies's that she is not appearing at this hearing. We have considered the various arguments, but we cannot see that there is any error of law in the Decision reached. We can see no error of law in the issue that was determined by the Tribunal. We dismiss the appeal.