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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Chesterfield & N Derbyshire Royal Hospital NHS Trust v McCormick & Ors [1999] UKEAT 1500_98_0302 (3 February 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/1500_98_0302.html Cite as: [1999] UKEAT 1500_98_302, [1999] UKEAT 1500_98_0302

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APPEARANCES

 

For the Appellants	MR JOHN BOWERS QC (of Counsel) Messrs Wansbroughs Willey Hargrave Solicitors 241 Glossop Road Sheffield S10 2GZ


 


JUDGE H WILSON: By a decision of the Employment Tribunal sitting in Sheffield on 29 September 1998, the Tribunal found that it had jurisdiction to hear the Applicants' claim for sex discrimination because, although the application was out of time, the Tribunal found that it was just and equitable for the matter to proceed.

The Respondent to the application appeals against that finding and we have been concerned today with the preliminary hearing on the matter. Mr Bowers on behalf of the proposed Appellant relies upon his skeleton argument and extends it. He makes three principal points, but it seems to us - and we think he agrees - that the second and third are really one.

The first point is that there was a fundamental misdirection by the Employment Tribunal when it directed itself that it was just to the employers to allow an employee to wait for a decision from the Court of Appeal before presenting her application. Secondly, the Employment Tribunal further misdirected itself and failed to hold the balance fairly as between the interests of each party. On the one hand, they accepted that the Applicant had been genuine in waiting for the Court of Appeal decision, although that is claimed to be a misdirection, but on the other hand, they did not apply the just and equitable test to the Respondent's position. Instead they changed it to ask themselves whether it was irredeemably unfair and unjust and inequitable for the case to proceed after a two year delay.

We have considered those submissions by Mr Bowers in the light of an examination of the Extended Reasons themselves. The Tribunal found that the Applicant was a very frank and open witness and that she had explained her the delay because she had been awaiting the result of the Edwards case, now reported as London Underground Ltd v Edwards [1998] IRLR 365. As soon as the judgment in it was published, she swung into action. She contacted her solicitor within days and she had spoken without delay to the Equal Opportunities Commission. She went to the Chesterfield Law Centre and she posted her application on or about 24 July and it was received at the Tribunal on 27 July.

The Tribunal held that the delay from the beginning of June when the Applicant first knew effectively about the judgment, having read it in the Guardian, until 27 July was not unreasonable because she was taking action during that period as quickly as she reasonably could.

Those are the facts with which we cannot interfere. Indeed Mr Bowers very properly says that he does not invite us to do that.

The Extended Reasons set out the basis upon which the Tribunal directed itself. There were two claims and the first was for unfair dismissal. In paragraph 8 of the Extended Reasons the Tribunal quotes accurately from the Employment Rights Act 1996 and finds that the Applicant's claim under that head is hopeless. There was absolutely nothing to stop the Applicant making a claim for unfair dismissal within the time allowed, and so they dismissed unanimously that part of the Applicant's application.

Clause 9 of the Extended Reasons quotes from the appropriate section of the Sex Discrimination Act 1975 that the position with the sex discrimination claim is not the same. Again the statutory provisions are accurately set out and in paragraph 10, the Tribunal observes that, "Just and equitable" is a different test from "reasonably practicable". They go on to refer to two cases about which Mr Bowers complains, but we note that the only matters drawn from those cases is that they are a guide to the principle that a long delay is not necessarily fatal, but that each case must be decided on its own facts.

Mr Bowers complains principally however that it is not the proper test - or rather it is not the same test applied to the employers as to the employee when looking at the balancing exercise. He complains that it is a fundamental misdirection for the Tribunal to ask itself whether it is irredeemably unfair and unjust and inequitable to the Respondent for a case to proceed after a two year delay.

It was suggested to Mr Bowers that, if the statutory words were substituted, the result would have been the same. If, instead of the words used by the Tribunal in its Extended Reasons, the question is rephrased to ask whether it is just and equitable for a case to proceed after a two year delay it would have been onward in the affirmative. With respect to Mr Bowers, we can say that the answer would have been exactly the same because that answer is set out in paragraph 11. It was admitted that the Applicant had, at the time of leaving, written to the Respondent, setting out effectively what her case was. Therefore in all the circumstances, although it was a finely judged matter, the Tribunal was unanimous that it was just and equitable for the claim to proceed.

We have to ask ourselves, whether the Employment Tribunal's response is within the range of responses that a Tribunal could reasonably reach. We find that it was and therefore find no ground upon which this appeal should proceed. Accordingly, it is dismissed.