MS M E STRACHAN v LONDON BOROUGH OF EALING [2002] UKEAT 979_01_2101

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 979_01_2101Case No Appeal No. EAT/979/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS M E STRACHANAPPELLANTLONDON BOROUGH OF EALINGRESPONDENT
Before
Mr Justice LindsayDate 21 January 2002
[1]APPEARANCES For the Appellant MR M MULLINS (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE LINDSAY (PRESIDENT) We have before us, as a preliminary hearing, the appeal of Ms M E Strachan against the London Borough Ealing and today Ms Strachan has appeared by Mr Mullins under the ELAAS scheme. We are very grateful to him for the research he has put in, and so also should Ms Strachan.[2]The position is that on 21 February 2001, Ms Strachan presented an IT1. The form of complaint, as she completed it in the box, was:
"Non eligibility for membership of employers pension scheme which was open to full-time employees only"
She indicated that her employment had ceased in April 1989. The IT1 was directed to the London Borough of Ealing Education Authority. On 1 March the Employment Tribunal wrote to Ms Strachan saying that her claim had been stayed, awaiting a House of Lords decision, but that the stay was then lifted, and they said:
"The House of Lords has ruled that, to be valid, a complaint must be presented to the Employment Tribunal not later than 6 months from the date on which the employment relationship ended and there is no provision for extending that time limit. A Chairman has reviewed your Originating Application and it appears that it was presented after that six month time limit had expired. On that basis, the tribunal is now proposing to make an order striking out your application. If you wish to show cause why such an order should not be made, you should do so in writing within 28 days of the date of this letter."
[3]On 27 March Ms Strachan replied:
"My grounds for doing so are that my complaint was presented within the prescribed period of not later than 6 months from the date on which my employment relationship ended with a body that was a successor to the London Borough of Ealing"
. This was a slightly confusing possibility because the successor was not identified and precise dates were not identified either. She was then asked when her employment within the successor body ceased. On 8 June 2001, Ms Strachan indicated that employment with the successor body ceased on 21 August 2000. That, therefore, gave rise to the question of when did whatever six month period that was relevant, expire?[4]On 1 July 2001 the Employment Tribunal made a Striking Out Order. They said:
"2 The date on which her employment with that employer came to an end was 21 August 2000 which was more than six months prior to the commencement of these proceedings. 3. The time limit for bringing such a complaint is six months from the ending of the employment relationship in question, and there is no provision for extending that limit in any circumstances. 4. Accordingly, by letter dated 1 March 2001 the Applicant was invited to show cause why her complaint should not be struck out under rule 13(2)(d) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993, on the grounds that, as it must inevitably fail, it would be frivolous or vexatious to pursue it. 5.

(d) "

Then on 7 August, Ms Strachan put in her Notice of Appeal. The relevant six month time limit is provided for in the Equal Pay Act 1970 section 2(4) that says:
"(4) 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."
[5]The consideration of this type of case arose in the case in the House of Lords of Preston & Others -v- Wolverhampton Healthcare NHS Trust [2001] IRLR 237 . That, no doubt, was the case in the House of Lords which was awaited and which was referred to in the Employment Tribunal's letter of 1 March. It will be noted, though, that in the references to the time limit in the correspondence and in the Decisions involving Ms Strachan, the time limit had been framed as if one looked forward from the end of employment down towards the date of presentation of the IT1. In fact, as we have seen, unusually, the computation in this particular case runs backwards, subsection 4 saying:
"if she has not been employed in the employment within the six months preceding the date of the reference."
That kind of computation time is rarely found and Mr Mullins has been looking to find analogous authorities but, rather than our embarking on a study of them, we do see that there is an arguable question of law fit to go to a full hearing, given that one has to be very precise in the computation in this particular case because it would seem that, even in the worst possible case for her, Ms Strachan is only day out. One only needs to shift the computation a little and her complaint would be in time. But it does not seem to us to be right for us to embark on a ruling as to the proper construction of section 2(4) of the Equal Pay Act in the absence of the Respondent, and equally unfair on Mr Mullins to bear the whole weight of citation of all authorities that might be relevant. We are very grateful to him for his assistance; he has, in our view, identified an arguable (one has to underline the word "arguable") point of law, and we allow the matter to go forward.[6]Mr Mullins thinks that there may be a need to amend the Notice of Appeal. He has asked for seven days in which to do that, and we grant that seven days. Time estimate; an hour and a half, Category B. Skeleton Arguments not less than fourteen days before the hearing to be sent to the EAT and exchanged.