Appeal No. UKEAT/561/95/PA

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 12th October 1995
	                    Judgment handed down on 12 October 1995

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR E HAMMOND OBE

	MR K M YOUNG CBE

MRS M O'NEILL	APPELLANT

(1) GOVERNORS OF ST THOMAS MORE R.C. SCHOOL	RESPONDENTS
(2) BEDFORDSHIRE COUNTY COUNCIL

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	THE APPELLANT 	APPEARING IN PERSON

For the Respondents	MR NIGEL BENNETT
(Managing Solicitor)
Business Services Department
Legal Services
County Hall
Cauldwell Street
Bedford
MK42 9AP

	MR JUSTICE MUMMERY (PRESIDENT):   This is an application by Mrs O'Neill for a review. She seeks the review of an order made by the Employment Appeal Tribunal on 15th February 1995. That order provided that:

"UPON THE APPLICATION of the Appellant by letter dated the 10th day of February 1995

THE TRIBUNAL GIVES LEAVE for the Appeal to be withdrawn and said appeal is thereby dismissed."

	That appeal was against the decision of the Industrial Tribunal held at Bedford on 10th, 11th and 12th August 1994, and 2nd September 1994. 

	In the extended reasons notified to the parties on 24th October 1994, the Industrial Tribunal unanimously decided, first, that Mrs O'Neill had not been discriminated against on the ground of her sex, and secondly, that she had been unfairly dismissed. She was awarded £410.00 by way of compensation.

	The respondents were, first, the Governors of St Thomas More RCVA Upper School and secondly, the Bedfordshire County Council.

	Mrs O'Neill was represented at the Industrial Tribunal by Counsel, Mr Xydias, instructed by a firm of solicitors, Moriarty & Co of Sutton Coldfield. 

	Mrs O'Neill appealed against the decision of the Industrial Tribunal by a Notice of Appeal dated 5th December 1994. She appealed against both the decision that she was not discriminated against on the grounds of her sex, and on the amount of compensation awarded for unfair dismissal. The grounds of appeal were that the Governors of the school acted unlawfully in their decision to dismiss her, by not complying with their own specific procedures and that therefore their actions had no legal validity. The grounds state that, if the actions had no legal validity, the Tribunal should not have been entitled to consider the Governors' explanations for the steps they took or to consider them when deciding whether she was dismissed by virtue of sexual discrimination. The other ground of appeal, in relation to the award of compensation for unfair dismissal, was that the Tribunal had misapplied the law in finding contributory conduct as a ground for reducing the award which was made.

	On 8th February 1995, the Industrial Tribunal heard an application by Mrs O'Neill for a review of the decision notified on 24th October 1994. The application for a review was contained in a letter sent by Moriarty & Co on 8th November 1994. On the hearing of the application Mr Xydias again appeared as Counsel for Mrs O'Neill. The application for review was made on the grounds that the interests of justice required such a review. It was submitted that there was new evidence available which materially contradicted much of the evidence of the respondents.

	The Tribunal refused to grant a review. It appears from the reasons promulgated on 23rd February 1995 that Mr Xydias, on behalf on Mrs O'Neill, conceded at the hearing of the application that there was no new evidence available. In those circumstances it was not surprising that the Tribunal came to conclusion that the interests of justice did not require a review of their earlier decision. An application for costs was made on behalf of the Governors. The Tribunal made an order of £200.00 costs to be paid by Mrs O'Neill to the respondent Governors.

	On 10th February 1995 Moriarty & Co wrote on behalf of Mrs O'Neill to the Employment Appeal Tribunal saying this:

"Further to the above matter we write to advise you that we have now received instructions from our Client to withdraw her Appeal. We therefore ask you to mark your papers accordingly. We confirm that we have advised the Respondents of our Client's decision in this regard."

In reliance on that letter, this Tribunal made the order of 15th February 1995.

	As far as this Tribunal was concerned, and as far as the respondent Governors were concerned, that seemed to be the end of the case. 

	It appeared that an appellant, who had legal representation, decided not to go on with the appeal. It was dismissed without any hearing by this Tribunal of arguments whether or not the decision of the Industrial Tribunal contained an error of law. There has never been any determination by this Tribunal as to the correctness or otherwise of the decision of the Industrial Tribunal on Mrs O'Neill's claim for sex discrimination.

	That is not, however, the end of the matter. What has now emerged can, we think, be fairly described as an unusual situation. It appears from the documents that on 11th February 1995, Mrs O'Neill wrote about her case to the European Commission in Brussels. She received a reply dated 27th February 1995, about two weeks after the appeal had been dismissed on her withdrawing it. The letter from the Commission was written by the Head of the Equal Opportunities Unit in the Directorate General V Employment, Industrial Relations and Social Affairs. The letter said:

"Thank you very much for your letter  of 11 February 1995, which has been passed to me in my capacity as head of the Equal Opportunities Unit.

Having reviewed the facts of your case as you explain them and as set down in the judgement of the Industrial Tribunal which you attached, I believe that you should not discount the prospect of further litigation. The Industrial Tribunal ruled that you were dismissed from your job because you became pregnant by a Roman Catholic priest. The Tribunal also reasoned that where there are mixed motives for a particular decision and one of these motives is illegal, that motive must have been of sufficient weight in the process of arriving at the decision before that decision can be considered unlawful. ..."

Reference is then made to two decisions of European Court of Justice Gabriele Habermann-Beltermann v Arbeiterwohlfahrt Bezerksverband Nbd/Opf eV Case C-421/92 and a better known case, Carole Louise Webb v EMO Air Cargo (UK) Ltd Case C-32/93. The facts of those cases, in particular the Webb case, are discussed in the letter. The writer of the letter concluded the discussion by saying:

"I believe that these cases tend to suggest that having mixed motives for dismissing a pregnant woman from her employment does not always protect that dismissal from legal challenge."

The letter continues:

"I understand from your letter that you have dissuaded from appealing against the ruling of the Industrial Tribunal and that an application for review was unsuccessful. ..."

(That was the application for review before the Industrial Tribunal.)

"The European Commission is not in a position to intervene in private disputes or to try to contradict the rulings of national courts. Moreover, although the Court of Justice had ruled on pregnancy issues in the above cases and others, it cannot be stated with certainty that your case reveals an infringement of Community Law. A ruling of the Court of Justice would be needed to determine that.

"Nevertheless, I would suggest that you make contact with the Equal Opportunities Commission in Manchester. ..."

The letter gives the address, telephone and fax numbers of the Manchester office of the EOC.

	Mrs O'Neill wrote to the EOC on 5th March 1995. She received a reply dated 22nd March 1995. It was pointed out that, if she wished to continue with the litigation, that would need to be done by way of an appeal to the Employment Appeal Tribunal. It was pointed out that the time for lodging an appeal had expired, but that this Tribunal had power to extend time in exceptional cases. She was given further advice about the procedure followed by the Employment Appeal Tribunal in extending time for lodging an appeal. She was also given advice about the way in which requests for assistance are dealt with by the EOC. The letter contained advice from the Principal Legal Officer that in the meantime Mrs O'Neill should contact the Employment Appeal Tribunal to explain the situation. 

	Mrs O'Neill wrote a letter to the Employment Appeal Tribunal dated 23rd March 1995 and received in this Tribunal on 4th April 1995. Mrs O'Neill wrote:

"I write to you, upon the advice from the European Commission and the Equal Opportunities Commission. [She enclosed the correspondence I have referred to. She then referred to her claim in the Bedford Industrial Tribunal for unfair dismissal and Sex Discrimination, and her lodging an appeal.]

Simultaneously, [that is simultaneously with the appeal] an application for review on the grounds of new evidence and in the interests of justice was issued by my legal representatives at the Tribunal. A preliminary hearing took place in February 1995 to assess the question of review. Application for review was refused (I await receipt of the written reasons).

At that time Counsel strongly advised that I withdraw  my notice of appeal with EAT immediately. Reluctantly, I took this advice, mainly due to the financial burden of continuing. But I felt such a huge sense of injustice in what had taken place, that I wrote to European Commission.

That brings me around to the purpose of this letter.

It is my intention, once all the documents are in place, to apply to appeal and plead for an extension on the time limit. I appreciate this may be irregular but I believe my case to be exceptional and would like it to be treated as such.

I would appreciate your advice."

We have been told by Mrs O'Neill that the bill for legal costs in relation to the Industrial Tribunal was £3,000.00 for solicitor's costs, and £800.00 for the Counsel's fees. She was not in receipt of other assistance. She told us that she received no advice from her solicitor or Counsel about the availability of legal aid for the purposes of pursuing an appeal to this Tribunal. That is what Mrs O'Neill has told us. We have no reason to doubt that it is correct, but we have heard nothing from the lawyers formerly instructed by her about their version of these matters.

	The Employment Appeal Tribunal responded to Mrs O'Neill's letter by letter dated 24th April 1995. The Registrar stated:

"The Registrar has advised that the Appellant must make an application under Rule 33 of the Employment Appeal Tribunal Rules 1993 within 14 days of the date of this letter.

The application should state in full the grounds on which the Appellant wishes to have to the Order reviewed or set aside."

	Mrs O'Neill wrote a letter to the Employment Appeal Tribunal dated 3rd May, received on 12th May 1995, enclosing an application for review with supporting enclosures. She said:

"... I wish to formally apply for my application to be heard out of time.

My reasons for doing so are complex and varied.

Originally following the tribunals decision (enclosed) an application for appeal was lodged and recorded. However, the application was withdrawn, following an unsuccessful review hearing and counsels advice. Regrettably, the action was taken to withdraw the appeal prior to receipt of enclosure from both the European Commission and Equal Opportunities Commission (enclosed) which has taken simultaneously to advice from Counsel.

I believe I have grounds for an appeal that are exceptional and my grounds are listed in the notice of appeal. Furthermore, I do not believe justice was seen to be done.

I hope that my application will be accepted and look forward to hearing from you."

A Notice of Appeal form was filled in by Mrs O'Neill and dated 3rd May 1995. She repeated in that Notice of Appeal the grounds set out in the Notice of Appeal originally served in December 1994.

	After receipt of those documents, Mrs O'Neill was informed that there would be an oral hearing of the application. She was sent a further letter on 11th July 1995, informing her that her application should state in full the grounds on which she wished to have the matter reviewed. She was informed on 21st July 1995 that a date would be fixed for the hearing of her application to resurrect the appeal.

	This is the hearing. Mrs O'Neill argued her own case. She makes the application under Rule 33 of 1993 Rules. That provides:

"33.-(1) The Appeal Tribunal may, either of its own motion or on application, review any order made by it and may, on such review, revoke or vary that order on the grounds that-

(c)the interests of justice require such review."

	The time limit for making an application is contained in Rule 33(2):

"(2)	 An application under paragraph (1) above shall be made within 14 days of the date of the order."

	The application is opposed by Mr Bennett on behalf of the respondent school governors. He makes a number of points in relation to the application of the rules regarding review, and a reference to the authorities which state the principles on which the Tribunal decides whether or not to allow a decision to be re-opened. Mr Bennett submitted in a helpful skeleton argument, amplified in oral submissions; that the application was out of time. That is not disputed by Mrs O'Neill. She asks for an extension. Mr Bennett highlighted the delays which have occurred. He pointed out that the order was made on 15th February 1995. The first communication that Mrs O'Neill had with the Tribunal was the letter dated 23rd March 1995, not received here until 4th April 1995. The next communication was not until 3rd May 1995 letter, received by this Tribunal on 12th May 1995. It was not until this Tribunal wrote a letter on 9th June 1995 that her application was formally treated as an application for review. He submitted that, although the Tribunal has power to extend time under Rule 37 of the 1993 Rules, the Tribunal should, in the exercise of that discretion, look at the reason for the delay. In this case, there was not a good reason for the delay. Advice had been sought from the European Commission by letter of 11th February 1995. Time had passed before application was made for the review without any good excuse for that delay.

	Mr Bennett quoted Rule 33(1)(c), the ground of review. He submitted that the interests of justice did not require a review, for these reasons: Mrs O'Neill had withdrawn the appeal; she had given her lawyers clear instructions to do that; the appeal, as she has made clear in own letters, was withdrawn on professional legal advice, though, she was under a financial burden in continuing with it, having regard to that size of the bill for costs incurred in the Industrial Tribunal. Mrs O'Neill had taken advice from the European Commission and the Equal Opportunities Commission, but only after instructing her lawyers to withdraw the appeal. It is fair to comment that it would have been possible, and certainly would have been advisable, to seek advice from those bodies before making what appeared to the respondents and to this Tribunal to be a final and informed decision, not to go on with the appeal. The decision to withdraw and the letters to the two Commissions were taken in the wrong order. Enquiries should have been made before a decision was made.

	Finally, Mr Bennett submitted, by reference to the decision of this Tribunal in Flint v Eastern Electricity Board [1975] ICR 395 at 404, that, in deciding what the interests of justice require, the Tribunal should look not only at the interests of the employee, but also at the interests of the employer and of the general public. The judgment of Phillips J, says this:

"But I do think it necessary ... to find some other circumstances, some mitigating factor, to make it such that the interests of justice require such a review. What are they? First of all, there are the interests of the employee. ... One also has to consider the interests of employers, because it is in their interests that once a hearing which has been fairly conducted is complete, that should be the end of the matter. Although this is a case where one's sympathy is with the employee, because it is his claim for a redundancy payment and the employers have more money than he has, it has to be remembered that the same principles have to applied, either way because one day a case may arise the other way round. So plainly, their interests have to be considered.

But over and above all that, the interests of the general public have to be considered too. It seems to me that it is very much in the interests of the general public that proceedings of this kind should be regarded as final as possible; that is should only be in unusual cases that the employee, the applicant before the tribunal, is able to have a second bite at the cherry."

	We asked Mr Bennett, to focus on the question: what injustice would be suffered by his clients in allowing this matter to be re-opened and for the correctness or otherwise of the Industrial Tribunal's decision adverse to Mrs O'Neill to be argued before this Tribunal? He asserted that there would be an injustice to his clients. They had regarded the matter as finally resolved when this Tribunal dismissed the appeal on Mrs O'Neill's withdrawal of it. Matters have moved on since then. When we asked him to explain what he meant by that, he said that there was a new school year, and new budgets had been set on the basis that there was no liability for sex discrimination to Mrs O'Neill. He said that, in view of the matters raised by Mrs O'Neill about the legal advice she had received, it may be that her remedy is against her lawyers, rather than by re-opening this matter. There may be some liability on the part of her lawyers, in failing to advise her about her prospects on the appeal, in failing to take relevant points in the Notice of Appeal, in failing to advise her to make enquiries of the European Commission and the Equal Opportunities Commission, before deciding to withdraw the appeal, and in failing to advise her in relation to the availability of legal aid in this Tribunal. 

	We have given careful consideration to these matters. It is unusual for this Tribunal to allow a review of an order dismissing an appeal of a party making a decision on legal advice to withdraw it. It requires an unusual or exceptional case to persuade us to revoke such an order.

	We have, however, been persuaded by Mrs O'Neill that this is an unusual and exceptional case. The circumstances satisfy the requirements of justice for re-opening the matter.

	In assessing the requirements of justice, we consider in the interests of the public in finality of legal proceedings, and the interests of the employer in finality. We also consider the interests of the employee. As we see it, the position is this: if we do not allow the appeal to be re-opened, there will certainly be an injustice to Mrs O'Neill, because there is an arguable error of law in the decision of the Tribunal on the question of sex discrimination. That question has never been argued before this Tribunal. This is not a case where Mrs O'Neill argued the point, lost it, and seeks a second hearing of her appeal. Paragraph 9 of the full reasons of the Industrial Tribunal contains an arguable error of law. Mrs O'Neill was dismissed having been made pregnant by a Roman Catholic priest. The Tribunal concluded that to dismiss her for that reason was not sex discrimination. The reasons they gave for that conclusion were as follows: 

9	What were the motives for the dismissal in this case? The respondents contend that it was untenable for the applicant to teach religious education and personal relationships, with credibility, within the ethos of the school based as it is on the teachings of the Roman Catholic Church, where 80% of the pupils were Roman Catholic. The fact that the applicant was pregnant by a Roman Catholic priest and that the fact of the relationship was in the public domain was a further reason for dismissal. We heard evidence relating to other unmarried teachers who had become pregnant and who were not treated in the same way as was the applicant. Neither of those teachers taught religious education nor was there any "scandal" surrounding their relationships. In those circumstances, the school was supportive of the teachers in question. Thus it seems to us that an important motive for the dismissal was not the applicant's pregnancy per se but the fact that the pregnancy was by a Roman Catholic Priest, and that, as a result, the school saw the applicant's position as a teacher of religious education and personal relationships as being untenable. Thus, we were left with the distinction between pregnancy, and the pregnancy of a religious education teacher by a Roman Catholic Priest where that relationship had come into the public domain in so far as it had become known that Mrs O'Neill was pregnant by a local priest and it was this which was the dominant motive for the respondents actions. In other words we are satisfied that pregnancy per se was not the reason for these actions and it must therefore follow that she was not discriminated against on the grounds of her sex and that her claim must fail."

	Whether those reasons are given are legally correct is not a matter for decision today. We have not heard detailed legal argument, either from Mrs O'Neill or from Mr Bennett. Mr Bennett informed us that he had not come prepared to argue the point. His position on that was correct. The purpose of today's hearing is not to argue the point. It is to decide whether the point should be argued. 

	It is, however, relevant to the consideration of the requirements of interests of justice, whether or not this reasoning is obviously right. If the reasoning was obviously correct, the appeal would be hopeless, and it would not be in the interests of justice to re-open it. It does not appear to us that this reasoning is obviously correct. There are important legal arguments to be ventilated on this question, by reference to the most recent decision of the European Court of Justice in Webb v EMO Air Cargo. There will, if the matter proceeds, soon be a decision of the House of Lords in relation on the same case about the impact of the Equal Treatment Directive on the sex discrimination law of this country.

	In our view, this is a matter which the interests of justice require to be argued at this Tribunal. They have not been argued. It is in the interests of Mrs O'Neill that they should be argued. It is in the interests of the public that they should be argued. It is not in the interests of the public to have a possibly erroneous decision of law on a matter of public significance remaining untested at this level.

	As for the injustice to the employers, we are unable to see what that injustice is. Either that decision is legally correct, in which case the appeal will be dismissed, or it is legally incorrect, in which case justice will be done. We appreciate the possibilities of the effect of a successful appeal on the financial position of the school. To date they have paid £410.00 in relation to the claim for unfair dismissal. If the appeal is successful, and if it were pursued to a higher court and were upheld, there would be a liability for sex discrimination without any ceiling on compensation. It is not for us at this stage to express any view as to what the likely level of compensation would be. That depends on factors which have not been investigated. There may be no liability, because the decision may be correct.

	Balancing all these factors together, we have come to conclusion that this is a case where the interests of justice require a review. We are satisfied by the circumstances of this exceptional case, that we should extend the time. Mrs O'Neill has shown good grounds which have explained at every stage what she was doing, and the time it took to do it. We decide to extend the time for making the application for review. We grant the application, as the interests of justice require it and revoke the order of 15th February 1995.

	MR JUSTICE MUMMERY (PRESIDENT): Leave to appeal is refused.