Appeal No.	 EAT/851/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 31 October 1997

Before
THE HONOURABLE MR JUSTICE MAURICE KAY
MR K M HACK JP
MRS T A MARSLAND

MRS R GOUGH	APPELLANT

B & Q PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR H GOUGH
(Husband)	

	MR JUSTICE MAURICE KAY:     This is a preliminary hearing of an appeal by Mrs Gough against the decision of an Industrial Tribunal sitting at Birmingham on 12 May 1997.

	Mrs Gough used to be employed as a Departmental Manager by B & Q Plc.  She began work with that company on 15 October 1979 and remained there until she retired on 30 June 1986, that being the end of the month in which she became 60 years of age.  In those days B & Q’s normal retirement age for women was 60 but for men 65.  It seems that that discrepancy ceased in the following year and that on 7 November 1987 B & Q equalised the normal retirement ages for both men and women.

	Mrs Gough commenced an application in the Industrial Tribunal on 15 October 1996, bringing a claim of sex discrimination or unequal treatment on the basis of sex, on the grounds that she was compelled by B & Q to retire at the age of 60, when men were permitted to retire at 65.

	The decision of the Industrial Tribunal was that Mrs Gough’s claim based on sex discrimination, had been brought out of time under the provisions of Section 66(1) of the Sex Discrimination Act 1975 and that the Tribunal had no jurisdiction to hear her claim.

	In the Industrial Tribunal, as indeed before us, Mrs Gough was ably represented by her husband.  The Industrial Tribunal directed its mind principally to two issues.  Firstly, whether Mrs Gough could rely on the provisions of the Equal Treatment Directive in view of the fact that the organisation for which she worked was, on any basis, a commercial concern in the private sector and not what is sometimes called “an emanation of State”.  The second issue was whether, under the provisions of the Sex Discrimination Act, her application being very substantially out of time, the circumstances were such that the Industrial Tribunal ought nevertheless to permit her to proceed, on the basis that it would be just and equitable to do so in accordance with the provisions of Section 76(5) of the 1975 Act.

	In a carefully expressed decision, in which we can find no legal error, the Industrial Tribunal found against Mrs Gough on both of these principal issues.  It seems to us that so far as the directive is concerned, there can be no point of law arising susceptible to further argument, because the authorities to which the Industrial Tribunal referred in the course of its decision make the position clear and that position, in our judgment, was properly understood and applied by the Industrial Tribunal.

	So far as an extension of time is concerned this Appeal Tribunal will rarely interfere with the view of an Industrial Tribunal as to whether it would be just and equitable to allow a claim otherwise out of time to proceed.  There are circumstances where this Appeal Tribunal does interfere.  We have had to consider whether this is a case where it is arguable, with any prospect of success, that at a final hearing the Employment Appeal Tribunal would come to any decision different from that reached in the Industrial Tribunal.

	We have to say that we are unanimously of the view that this Appeal Tribunal would not interfere with the decision reached in the Industrial Tribunal on this issue.  Accordingly, we find that there are no points of law with any prospect of success in the final hearing, and notwithstanding the courteous and careful submissions made by Mr Gough here and we apprehend in the Tribunal, we have come to the conclusion that we shall have to dismiss this appeal at this stage.