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Issue 27 (October 1998)
Identifying the transfer
Time limits in equality casesEmployment Rights (Dispute Resolution) Act 1998
Gays abandoned: High Court u-turn on Royal navy discrimination
Setback for redundancy rights
RSI - dead or alive?
Leaving employment - reason for giving resignation
Mills & Crown Prosecution Service v Marshall EAT IRLR 1998 494
The Employment Appeal Tribunal has upheld an Employment Tribunal's decision to allow a late claim under the Sex Discrimination Act 1975. The reason for the delay was that the Applicant and her legal advisers were reasonably unaware of her right to bring a claim until the law was "clarified" by the European Court of Justice decision in P v S [1996] IRLR 347.
Ms Marshall, a transsexual, was offered a post with the Crown Prosecution Service as a man. When she told the CPS that she intended to take up the position as a woman, the offer was withdrawn.
Ms Marshall did not complain of sex discrimination until the European Court of Justice held in P v S that the Equal Treatment Directive covered discrimination against a transsexual for reasons relating to a gender reassignment.
An Employment Tribunal exercised its discretion to allow a late claim on the basis that it was "just and equitable" to do so; the evidence in the case was well documented and the Respondents could not be prejudiced by a hearing.
The CPS argued on appeal that to allow a late claim would offend against the principle of legal certainty and relied heavily on the Court of Appeal's judgment to that effect in Biggs v Somerset County Council [1996] IRLR 203 CA. In that case Lord Justice Neill said "it would be contrary to the principle of legal certainty to allow past transactions to be re-opened and limitation periods to be circumvented because the existing law at the relevant time had not yet been explained or had not been fully understood".
Biggs concerned the question of whether part time workers could bring late claims of unfair dismissal after the House of Lords' decision in R v Secretary of State for Employment ex parte Equal Opportunities Commission [1994] IRLR 176 HL, declaring that the different qualifying periods for unfair dismissal protection for full and part time workers was unlawful.
In the Marshall case, the EAT neatly dodge the Biggs authority by distinguishing the statutory provisions to extend time in making complaints under the (now) Employment Rights Act 1996 for unfair dismissal and the Sex Discrimination Act 1975 for sex discrimination. The EAT say the words "just and equitable" in discrimination legislation giving power to extend time "could not be wider or more general...the discretion...is unfettered and may include a consideration of the date from which the complainant could reasonably have become aware of her right to present a worthwhile complaint".
A consideration of this aspect does not offend against the principle of legal certainty. The decision in Biggs was based upon a different statutory regime and did not bear on the question at issue.
Some important changes have taken place or are scheduled to take place in the near future.
The following Sections came into force on 1 August 1998:
Section 1 - Change of name from Industrial Tribunals to Employment Tribunals.
Section 3 - Sit alone cases. The most important category is likely to be redundancy payment cases. However, Chairs have a discretion to appoint a full Tribunal and where there is extensive conflict of facts or assessments have to be made on issues such as reasonableness, parties will be able to argue that they would benefit from a full hearing.
Examples would include breach of contract cases where the tribunal will need to assess whether the conduct amounted to gross misconduct, and redundancy cases where a determination of whether alternative employment was suitable or reasonable. It will be advisable to write to the tribunal beforehand asking for a full hearing so that wing members can be appointed in advance.
Section 4 - hearings by Chair and just one other member.
Section 6 - jurisdiction in cases about political fund contributions.
Section 7 and 8 - ACAS Arbitration scheme. Nothing will actually happen because the ACAS scheme has not yet been prepared and this is unlikely to happen before April 1999.
Sections 9 and 10 - Compromise agreements.
Section 12 - Dismissal procedure Agreements.
Section 14 - Unfair dismissal and Disability Discrimination Act claims enabling tribunals to make an additional order for compensation for disability discrimination and unfair dismissal claims, to match that of sex and race (c/f ERA Section 117 (6)) and the prohibition against double compensation which was also overlooked in the Disability Discrimination Act 1995.
The following were implemented on 1 October 1998:
Section 11 - Settlement of redundancy cases by Conciliation Officer.
The following will come into force on 1 January 1999:
Section 13 - compensation and internal appeal procedures. It is not clear whether 1 January 1999 will refer to the EDT, the date the tribunal assesses compensation or the date the employee failed to use the appeal procedure/the employer refused to permit him/her to. Hopefully the commencement order will provide clarity.