Appeal No.	EAT/1435/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 February 2002
Judgment delivered on 2 May 2002

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
MR P DAWSON OBE
MRS D M PALMER

MRS J KELLS	APPELLANT

PILKINGTON PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR SIMON GORTON
(of Counsel)
Instructed By:
Mr M Turnbull
Messrs Thompsons
Solicitors
Acresfield
8 Exchange Street
Manchester M2 7HA	
For the Respondent	MR PAUL GILROY
(of Counsel)
Instructed By;
Ms J P Halligan
Pilkington Plc
Group Legal Dept
Prescott Road
St Helens
Merseyside
WA10 3TT	

MR JUSTICE LINDSAY (PRESIDENT):
1.	Mrs Kells appeals against the decision of the Employment Tribunal at Liverpool which, firstly, struck out her equal pay claim as, in effect, pointless, on the ground that the comparisons she relied on were with events more than 6 years old at the date of her IT1.   The Tribunal, secondly, ruled that, in the absence of a continuing discriminatory policy practice or rule, her claim for sex discrimination was out of time as based only on specific separate events that were too distant.
2.	On 10th November 1999 Mrs Kells presented an IT1 for “Breach of Equal Pay Act;  Breach of Article 119 of the EC Treaty;  Sex Discrimination;  Constructive Unfair Dismissal”.   Her claim was against Pilkington plc.   She identified her Union as representing her.   She said she had been employed by Pilkingtons from September 1972 and that from 1989 to 20th August 1999 she had been a Research Scientist.   She had resigned on that latter date.   Her grade had been “RS2” but she said that she had done work of equal value to 3 former RS1 employees whom she identified.    She was, though, she claimed, on a less favourable rate of pay than they had been on.   As for discrimination, she had returned from maternity leave in December 1990 on an agreed part-time basis but was refused re-evaluation and given a heavier and less satisfying work-load because of her part-time status in a way which amounted to discrimination on the ground of sex.
3.	On 14th December 1999 Pilkingtons in its Notice of Appearance answered in some detail;  on 21st July 1999 Mrs Kells had tendered one month’s notice of resignation and her employment had duly terminated on 20th August 1999.   She had indicated at the time that she was going to commence a teacher-training course, having previously sought voluntary redundancy at Pilkingtons without success.   She had not indicated that she was resigning in response to any breach by Pilkingtons.   As for her equal pay claim, her job, Research Scientist II, was in several respects different from that of her comparators, who had all been Grade I.   In paragraph 9 of the IT3 Pilkingtons said:-
“9.	As a result of the decision of the European Court of Justice, “ECJ”, in Levez v T.M. Jennings the Applicant can only claim arrears of pay accruing from 19th November 1993 onwards: (s. 2 (5) of the 1970 Act as extended by Levez).   Pending further clarification from the ECJ in the related appeals of Preston and others v Wolverhampton Healthcare NHS Trust and others and Fletcher and others v Midland Bank plc the Respondent will also rely on the 6 month time limit for the presentation of Equal Pay claims prescribed by s. 2 (4) of the 1970 Act.   Although the Applicant lodged her complaint within 6 months of the termination of her employment she cannot circumvent the 6 year limitation period on arrears by purporting to specify comparators with whom she worked at any time prior to 19th November 1993.”
In the event we were not referred to Preston or Fletcher.
4.	As for Mrs Kells’ claim for sex discrimination, Pilkingtons argued that it was out of time within section 76 (1) (a) of the 1975 Act and that there was no “continuing act” of discrimination such that she could avail herself of section 76 (6) (b).   Moreover, said Pilkingtons, it would not be just and equitable to extend time within section 76 (5) of the 1975 Act.   In any event, so far from being less favourably treated, Mrs Kells was more favourably treated than were full-time staff.   Pilkingtons denied her claims generally and requested further and better particulars, which Mrs Kells later gave.
5.	The matter came on for hearing before the Tribunal at Liverpool under the Chairmanship of Mr M.D. Homfray-Davies over 3 days in September 2000.   The decision was sent to the parties on 10th October 2000.   At the hearing Mrs Kells had been represented by a Regional Officer of her Union and Pilkingtons by Mr Gilroy, who also represented it before us.   The unanimous decision of the Tribunal was:-
“1.	The applicant’s equal pay claim in respect of like work regarding the comparisons drawn with Mr McKittrick and Mr Highton is struck out, as frivolous, pursuant to rule 13 (2) (d) of the Industrial Tribunal Rules of Procedure 1993.
2.	The applicant’s equal value claim is adjourned generally.
3.	The applicant’s equal pay claim in respect of the comparison with Mr Arnold is dismissed on withdrawal by the applicant.
4.	The applicant’s claim for sex discrimination is dismissed for want of jurisdiction.
5.	The claim for unfair constructive dismissal is dismissed.
6.	The applicant’s value claim is stayed for 14 days from the date this decision is sent to the parties.”
6.	On 17th November 2000 the Employment Appeal Tribunal received a Notice of Appeal from Mrs Kells.   At the Preliminary Hearing here on the 5th April 2001 the Notice of Appeal was re-amended with leave.   Mr Gorton then appeared for Mrs Kells, as he did before us.   The re-amended Notice of Appeal raises 2 grounds only, one relating to the Employment Tribunal’s striking out of the equal pay claim, one relating to its conclusion that the sex discrimination claim was out of time.   We shall deal with the two separately.
The Equal Pay claim
7.	As we have mentioned, in her IT1 Mrs Kells identified 3 comparators;  they were Mr Arnold (RSI), Mr McKittrick (an RSI between 1990 and 1993) and Mr Highton (an RS1 between 1989 and 1991).   As the Tribunal indicated, Mrs Kells later abandoned Mr Arnold as a comparator.   After initial discussion on the issue at the Employment Tribunal it was agreed to take as a preliminary point the issue of whether parts of Mrs Kells’ Equal Pay Act claim should be struck out as frivolous (as having no prospect of success) on the ground that any differential in pay between Mrs Kells and her chosen comparators had ended more than 6 years before her IT1 and, indeed, more than 6 years before the termination of her employment.   The Tribunal below held that any meaningful comparison between Mrs Kells and Messrs McKittrick and Highton as to their doing like work had, indeed, ceased more than 6 years before the IT1 and held that “No award of compensation could therefore be made” (our emphasis) in respect of the comparison with them.   Given that Mrs Kells’ employment had ended, a declaration of inequality was, said the Tribunal, meaningless and accordingly the “like work” claim in respect of Messrs McKittrick and Highton had no prospect of success and was struck out.   Other parts of her IT1 proceeded but the McKittrick and Highton comparisons were stopped at the outset.   Mr Gilroy had submitted to the Tribunal that where a chosen comparator had not, within a period of 6 years prior to the IT1 at issue, done like work to the work done by the applicant, no award based on a comparison with that comparator could be made in the applicant’s favour.   The Tribunal below accepted the argument (which we will call “the 6 year comparator bar”) and it is against that acceptance that Mrs Kells appeals.
8.	Where is the requirement of the 6 year comparator bar to be found?   Section 1 of the Equal Pay Act 1970 in certain cases writes an “equality clause” into a woman’s contract of employment when, inter alia, “the woman is employed on like work with a man in the same employment”.   Section 1 (4) provides, so far as relevant:-
“(4)	A woman is to be regarded as employed in like work with men if, but only if, her work and theirs is of the same or broadly similar nature ..... .”
9.	Section 2 (5) of the 1970 Act provides:-
“(5)	A woman shall not be entitled, in proceedings brought in respect of a failure to comply with an [equality clause] .... to be awarded any payment by way of arrears of remuneration or damages in respect of a time earlier than 2 years before the date on which the proceedings were instituted.”
10.	The use of the present tense, as we have underlined, gave rise to an argument that the comparison required by the Act was one between a man and woman contemporaneously in the same employment (and, by extension, contemporaneously doing “like work”) but such a construction would have conflicted with the broad purpose of Article 119 (now Article 141) requiring each member state to ensure that the principle of equal pay for male and female workers for equal work or work of equal value was given effect.   Thus in Macarthys Ltd -v- Smith [1980] ICR 672 the view taken by the Employment Tribunal and Employment Appeal Tribunal that contemporaneity was not required was upheld by the European Court of Justice.   In para 11 of its judgment at p. 690 the ECJ held that the concept of equal work was entirely qualitative in character in that it was exclusively concerned with the nature of the services in question and that it was not to be restricted by the introduction of a requirement of contemporaneity.   Once the need for that goes, there is, on the face of things, no specified period under the Act within which comparisons can or cannot be made as section 2 (5) is concerned with the period of default which can be compensated-for rather than the period during which comparison is acceptable.
11.	Next in turn of the four authorities to which we were taken was Albion Shipping Agency -v- Arnold [1981] IRLR 525 EAT.   There Mrs Arnold was claiming that she did like work to that done some 2 years before by a predecessor.   Browne-Wilkinson J., as he then was, giving the judgment of the EAT, saw no difficulty in principle with a comparison of such a kind although, at para 11 on p. 528 he echoed a doubt which the EAT had expressed in the Macarthys case, namely that:-
“Great care is necessary where there has been a substantial interval, because the difference in treatment may well be due to circumstances which have nothing to do with discrimination, and may be explicable on other grounds.”
12.	In Diocese of Hallam Trustee -v- Connaughton [1996] IRLR 505 the EAT was concerned with a comparison not with a predecessor but with a successor.   Miss Connaughton, an organist, was paid £11,138 p.a. down to her leaving in September 1994; her male successor got £20,000 p.a. from January 1995.   The EAT held that whilst the want of contemporaneity posed evidential problems it did not preclude Miss Connaughton’s claim;  she was able to advance a case to the effect that the male successor’s contract was so proximate to her own as to render him as effective a comparator as an “actual” one, by that meaning, in context, it would seem, as would have been a contemporary male organist.   Contemporaneity was not required - paragraph 16 - although, again, comment was made that:-
“Absent an actual comparator, whether contemporaneous or immediately preceding, then inevitably proof of inequality of pay becomes more difficult, not in principle but in practice .....” - paragraph 16.
13.	In Levez -v- T.H. Jennings (Harlow Pools) Ltd. (No. 2) [1999] IRLR 764 Mrs Levez in her IT1 of September 1993 made a comparison between her wages from February 1991 and those received by her male predecessor down to February 1991.   Only from April 1992 did she receive the rate her predecessor had previously enjoyed.   It had not been until March 1993, when she left the company, that she had discovered that her male predecessor had been paid more than she.   Her IT1 of September 1993 therefore claimed back to a period - from February 1991 - more than 2 years before its presentation.   The Employment Tribunal eventually concluded in her favour but only as from September 1991, by reason, as it thought, of the intendment of section 2 (5) supra.   Mrs Levez appealed on the ground that section 2 (5) was incompatible with Community Law.   In Hicking -v- Basford Group Ltd., heard at the Employment Appeal Tribunal with Levez (No. 2), Mrs Hicking by her IT1 of 25th April 1998 had claimed in respect of inequality of wages going back to 1991.   Her award was limited to the 2 years prior to the IT1.   She had claimed to go back 6 years.  
14.	The Levez case had been to the ECJ - [1999] IRLR 36 - and, applying the guidance given by the ECJ,  in Levez (No. 2) the EAT held section 2 (5) to be unenforceable as incompatible with the United Kingdom’s obligations under the Treaty.   Morison J., President, speaking of both the Levez and Hicking cases, said:-
“We accordingly allow the two appeals and make a declaration that s. 2 (5) is no bar to the recovery of monies held to be due for a period of 6 years from the date of the commencement of proceedings ......”
The period of 6 years derived from equivalence with the 6 year limitation period applicable to ordinary domestic contractual claims.   Levez was not concerned with the period of the events with which comparison can acceptably be made.
15.	We began this subject by asking where the 6 year comparator bar came from.   We can see no source for it.   There is no formal rule of law that only the circumstances attendant upon a chosen comparator in the period of 6 years before the presentation of the IT1 can be relied upon as a matter of effective comparison by an applicant.   For example, if, historically, the males given a particular job description and title at a particular employers, down to there being no one in the post from some 7 years before, had invariably been rewarded on that employer’s pay scale 3, a female claimant given that job description and title after the 7 years gap but taken on and retained only on lower pay scale 2 could properly claim she was treated less favourably by making a comparison with her predecessor, immediate in terms of office but distinct in time, notwithstanding that the comparison was made with a situation more than 6 years earlier.   Indeed, though we must not be thought to be deciding this, she might well be able so to claim even if the contemporary scale 2 was greater in money terms than had been the pay under scale 3 some 7 years earlier.   Of course, that the comparison relied on circumstances so distant in time, as Albion and Connaughton emphasised, would lead to difficulties as to evidence.   The nature of the work, the nature of the pay scales, the working and economic conditions might all have changed over the years and that the difference in pay, years later, was due only to gender would be likely to be more difficult to prove over such a passage of time.   But such considerations are matters of fact for the Employment Tribunal as the masters of fact.   In our view, the 6 year comparator bar is not a requirement of law.   In our view Mrs Kells’ Union was right to argue that the 6 year rule applied only to the period for which compensation could be sought and not to the period of the events with which comparison could be made.   Whilst Mrs Kells’ reliance on comparison with Messrs McKittrick and Highton at distant times would be likely to put considerable difficulties in her way they were and are difficulties of fact not law and needed, therefore, to be resolved on the evidence.   The Tribunal erred in law as, instead of looking into evidence, it felt able to dispense with such inquiry and instead ruled on the issue as if one of law, one of frivolity and fitness for a striking out.
16.	As no full comparison was ever attempted with Messrs McKittrick and Highton and as we cannot predict what the outcome would have been had there been one, we must set aside the decision on the strike out and remit Mrs Kells’ Equal Pay claim for further consideration.   We shall deal below with to whom it is to be remitted.
The Sex Discrimination claim
17.	Section 76 (1) of the 1975 Act requires Tribunals not to consider complaints presented more than 3 months after the acts complained of but under section 76 (6) (b) any act extending over a period is to be treated as done at the end of the period.   Moreover, under section 76 (5) a Tribunal is given an ability to admit late claims where, in all the circumstances, it considers it just and equitable to do so. 
18.	A distinction has to be drawn between a single act (but which has continuing consequences), which, section 76 (5) apart, has to be complained of within 3 months of its occurrence, and other events which, by being dictated by or implemented as or as part of a policy, rule or practice, are properly to be recognised as acts extending over a period and which thus become, under section 76 (6) (b), to be treated as done at the end of the period and thus such as can be complained of, section 76 (5) apart, within 3 months after the end of the period - see Owusu -v- London Fire & Civil Defence Authority [1995] IRLR 574 EAT.
19.	In her further and better particulars Mrs Kells specified events and their respective dates running down into 1999.   She did not in terms complain of a discriminatory policy rule or practice but her IT1 described what she had suffered as amounting to a continuing act of discrimination, on-going until her resignation.
20.	Bearing in mind her IT1 was presented on 10th November 1999 (and leaving aside section 76 (5)) Mrs Kells, if asserting only a number of single acts, could not complain of any such event occurring before 9th August 1999.   At the Employment Tribunal Mrs Kells was able to say that her constructive dismissal (as she claimed it was) was an event of 20th August 1999 but, she having lost the issue of constructive dismissal and not appealing that, that late event can no longer be asserted.   As to earlier events, the Tribunal below concluded that the last act complained of or “the end of the period” could not be later than 1st April 1999, putting her IT1 well out of time.   In its paragraph 13.3 the Tribunal said:
“Thus the last act complained of, or the end of the period, was, say, 1st April 1999.   We make no finding as to whether there was a practice or policy to discriminate against the applicant since we heard no evidence from the respondent.   But in the light of our findings the continuing act came to an end on say 1st April 1999.”
As for section 76 (5), the Tribunal held it was not just and equitable to let the Sex Discrimination Act claim proceed out of time and it was therefore dismissed.
21.	We would readily have understood the Tribunal’s conclusion if there had been no complaint of a continuing act of discrimination but, as we have seen, her IT1 complained that what she suffered was treatment amounting to a continuing act, continuing until her resignation.   Equally, if, in the light of the argument as it took shape at the Tribunal, that argument had been abandoned or had not been understood to be put, the Tribunal’s conclusion as to an end as at 1st April 1999 would be explicable.   However, in its paragraph 10 the Tribunal says:-
“10.	The essence of the applicant’s complaint is that since she became a part-time worker in 1990 the respondent failed to promote her and disadvantaged her in a number of specific ways, because she was a female part-time worker, and thus discriminated against her on the [grounds] of her sex .....”
A failure to promote is a familiar alleged consequence or incident of a policy, rule or practice - see e.g. Owusu supra - and that paragraph 10 relates to a complaint “since she became a part-time worker”, without other limit of time.   The Tribunal recognised that in its paragraph 10.3 where it said:-
“10.3	The applicant contends that there was a continuing act of discrimination from the time she became a part-time worker which subsisted until her contract was terminated .....”
It is true that Mrs Kells’ Union representative may not have been heard to speak of a policy, rule or practice as such but neither does the Act, which speaks of “any act extending over a period”, an expression which, as an allegation, the Tribunal’s understanding that there was an allegation of “a continuing act of discrimination” would satisfy.   It is thus not possible for us to take it that no policy, rule or practice was held to exist simply because none had been alleged or had been understood to be alleged, as discrimination by a continuous act extending down to the point of resignation was plainly a form of allegation the Tribunal believed it had before it.
22.	That leaves the question of whether no policy, rule or practice or, more precisely, no “act extending over a period” was not found because there had been no evidence given on the point.   Mrs Kells did give her evidence in chief and was cross-examined but the Tribunal’s conclusion was not that her evidence did not support the allegation of a continuing act of discrimination but, as we have already cited (with our emphasis):-
“since we heard no evidence from the respondent”.
If, as seems to us inescapable, those 8 words import the notion that in the Tribunal’s view a tribunal cannot properly hold there to have been a policy, rule or practice of an employer, one possibly in contravention of the Act, without evidence being received from that employer then that, in our view, would be in error of law.   For reasons corresponding to those described in that leading case on inference, King -v- G.B. China Centre [1992] ICR 516 C.A. at 528-9 - the existence or not of an offensive policy rule or practice can be decided by way of inference.   If a claimant claiming a continuing act of discrimination gives evidence so consistent with the existence of a policy rule or practice as to require an explanation from the employer to dispose of its existence then, if there is no such explanation in evidence from the employer, a tribunal may (but not must) infer its existence.   It is not as if an “act extending over a period” requires a specific act by the employer to give it effect - Cast -v- Croydon College [1998] IRLR 318 C.A. at paragraph 26, nor is a policy rule or practice required to have been reduced to formal expression.
23.	Nor can those 8 words cited from the Tribunal’s paragraph 13.3 supra be explained away on the ground that for some reason, not immediately discernible, the employer did not have the opportunity to explain by giving evidence as that, had it been true, would have led to the adjournment of Mrs Kells’ case as to sexual discrimination rather than to its dismissal.
24.	Mr Gilroy has good ground for saying that if it is to be expected to be ruled upon then the serious allegation that is sex discrimination should be clearly expressed in the IT1, that the facts relied on should be fairly identified and that no Tribunal is bound to have to embark of its own motion on an inquisitorial exploration of points that could have been, but were not, sufficiently “pleaded” or raised in argument - see e.g. Chapman -v- Simon [1994] IRLR 124 C.A.;  Mensah -v- East Hertfordshire NHS Trust [1998] 531 C.A..   However, the citations we have already made show that the Tribunal was well aware that it had before it a claim for a continuing act of discrimination running down to the end of the employment and it did not hold that the evidence given, the applicant’s evidence, failed to support its existence.   Indeed, in its paragraph 12.3 the Tribunal was willing to assume as fact that there had been a continuing failure to promote Mrs Kells. 
25.	On a different point, Mr Gilroy argued that a failure to promote could only be unlawful as at particular dates when promotion was possible rather than as a continuing act, by analogy with Swithland Motors plc -v- Clarke [1994] IRLR 275.   We do not need to decide this point (though it is hard to see why a policy not, for example, to promote blacks or women should be an unlawful act of discrimination only when promotions were possible) because the Tribunal in our case never looked into the facts to see whether continuously or at any particular dates promotion was or was not possible.   Nor does it help Pilkingtons to refer to Amies -v- London Education Authority [1977] 2 All E.R. 100 EAT, which shews that where there is an offensive practice, rule or policy anyone considering himself discriminated against on account of it has 3 months from the abrogation of the rule within which to complain.   That is not authority for the proposition that no one can claim until the rule is abrogated (if only because, if that were so, the discriminator would be better off continuing to discriminate than if he stopped).   In any event, there was no finding of abrogation and in its paragraph 12.3 the Tribunal, as we have mentioned, took as a fact that there had been a continuing failure to promote Mrs Kells.
26.	The Tribunal, in our judgment, erred in law in not considering whether a failure to promote Mrs Kells did, in all the circumstances, amount to a continuing act of discrimination and in disposing of the recognised allegation that there was a continuing of discrimination by reason of there being no evidence from the respondent.   We cannot say with any assurance what the outcome would have been had the Tribunal ruled on the subject after consideration of such evidence as both sides would have wished to adduce.   This subject, too, is therefore one in which we set aside the decision below and which we must remit for fresh consideration.
Conclusion
27.	Accordingly, of the six headings of the decision we set aside only (1) and (4).   However, there is no ground at all for either side having lost confidence in the Tribunal which heard the matter in September 2000 and so, unless the Regional Chairman is of the view that re-constituting the original panel of 3 would seriously delay the remission hearing, we remit to the same Tribunal as before.