Appeal No. EAT/627/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 18 April 1994

	Before

	THE HONOURABLE MR JUSTICE MORISON

	MR G R CARTER

	MRS T MARSLAND

MRS J RASTALL & OTHERS	APPELLANTS

MIDLANDS ELECTRICITY PLC & OTHERS	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR J CAVANAGH
(OF COUNSEL)
Mr B Piper
Director of Legal Services
Unison
1 Mabledon Place
London WC1H 9AJ

For the Respondents	MISS E SLADE QC AND
MR P WALLINGTON
(OF COUNSEL)
Mr J W Cotterell
Legal Adviser
Electricity Association
30 Millbank
London SW1P 4RD

	MR JUSTICE MORISON:  This was a matter which was due to occupy this Tribunal for a period of 2 - 3 days on very interesting points arising out of the question as to whether there is a time limit, and if so what time limit, in relation to the claims by women in respect of allegedly discriminatory retirement ages.

	The parties to this dispute came before a Tribunal chaired by Mr M A Rich on 16 October 1992 when he ordered, at the parties' request, that the preliminary issue as to whether the Tribunal had jurisdiction to deal with the applications should be dealt with in two stages.  At Stage 1 the Tribunal would answer the following questions:  (a) whether there is a time limit to be applied to these cases; (b) if so, what; (c) if so, from when does it run.  At Stage 2, which would be dealt with only after Stage 1 had been completed the question was, if applicable, whether, in the exercise of its powers under section 76(5) of the Sex Discrimination Act 1975, as amended, the Tribunal considered it just and equitable that all or any of the applications which were out of time should be considered by the Tribunal.

	What happened was that the Tribunal have resolved the answer to the three questions they were asked in stage 1 and the parties were proposing that this Tribunal should hear an appeal against that decision. 

	We raised with the parties when this matter was called on for hearing, whether it was sensible to have this appeal on stage 1 before stage 2 had been undertaken by the Industrial Tribunal.  We have been given considerable assistance by the parties' representatives in considering this issue and the common view, certainly of this Tribunal and therefore of the parties in consequence, is that provided that the matter can be relatively speedily determined, it would be preferable if stage 2 was determined before this appeal proceeded.  

	Accordingly, it is our judgment that this appeal should be adjourned, but we do so subject to four conditions.  First the parties themselves go before the same Chairman, Mr Rich, as soon as is reasonably practicable, for a Directions Hearing in relation to Stage 2.  Second, we invite the Industrial Tribunal, when applying section 76(5), to consider the exercise of its discretion not only on the basis that time started to run from the applicants' dates of retirement but also, as an alternative, that time only started to run from November 7 1987 (in accordance with a statement agreed between the parties and approved by us, which is attached to this judgment).  Third, that if any party is dissatisfied with the Industrial Tribunal's determination of the issue at Stage 2, any appeal against that Decision should be consolidated with the present appeal against the Tribunal's Decision on the issues at Stage 1, and such consolidated appeal should be expedited so that the two can be heard together as soon as is reasonably practicable after the Decision at Stage 2.  Fourth, for the avoidance of doubt either party may appeal against the Tribunal's ruling on the exercise of its discretion under section 76(5) in relation to the date of November 7 1987, regardless of the fact that such a date has not been decided by the Industrial Tribunal to be the date from which time starts to run.

	We expressly give the parties liberty to apply to us, if they have any queries arising out of the way this appeal should be re-listed and heard.

	Accordingly, on that basis alone, without making any comment whatever on the matters in issue between the parties, we would formally adjourn this appeal pending determination by the Tribunal in Southampton.  For clarification  I should say that it is the view both of this Court and of the parties that whilst it would be desirable if at all possible that Mr Rich himself should continue to chair any Tribunal in relation to stage 2, none of us feels that it 

is essential that the same two lay members should assist him at that hearing as assisted him at the hearing on stage 1.