United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 794_93_0103

Appeal No. EAT/794/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1 March 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (PRESIDENT)

Ms S R CORBY

MR J H GALBRAITH CB

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MRS L STEDMAN          APPELLANT

HOGG ROBINSON TRAVEL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR P DIAMOND

Counsel

(Pro Bono)

For the Respondents NEITHER PRESENTED NOR REPRESENTED


 


MR JUSTICE MUMMERY ...PRESIDENT) Introduction It is claimed that this appeal raised an important question of law concerning the right of a worker not to work on a Sunday. The proceedings, including this appeal, have such a chequered procedural history that it is not easy to identify the relevant facts and issues at the successive stages through which the case has passed. It was only after the end of the hearing of the appeal that the position of the parties was clarified. The present position is that a reference is sought under Article 177 of the EEC Treaty of certain questions to the European Court of Justice. The reference is requested on the basis of facts which were not established by evidence at the Industrial Tribunal, which this Tribunal was told at the hearing of the appeal had not been agreed, but which we are informed by a later letter have now been agreed. The task of the Industrial Tribunal and of this Appeal Tribunal has not been assisted by the fact that at no stage have the Respondents, Hogg Robinson Travel Ltd (HRTL), been represented or appeared. Written representations were made on behalf of HRTL to the Tribunal, but no representations, oral or written, have been made on their behalf on the appeal or on the request for a reference.

The Proceedings

A. The complaint

The Applicant is Mrs Louise Stedman. On 16th November 1992 she presented to the Industrial Tribunal a complaint signed and dated 28th October 1992. The substance of her complaint was that she had been unfairly dismissed on 4th June 1992 from her employment with HRTL since 13th August 1990.

There were two initial substantial difficulties in the way of her claim -

(1) Her complaint was presented after the end of the period of three months beginning with the effective date of termination of her employment. It was therefore out of time under S.67(2) of the 1978 Act.

(2) Mrs Stedman was not continuously employed by HRTL for a period of two years ending with the effective date of termination of her employment. She failed therefore, to qualify under S.64(1)(a) of the 1978 Act for the right of an employee under S.54 not to be unfairly dismissed by his employer. (This difficulty will be removed for the future if the Sunday Trading Bill, currently in the course of its passage through Parliament, is enacted. The rights proposed to be conferred on shopworkers as regards Sunday working will not be subject to a qualifying period.)

At the invitation of the Secretary of the Regional Office for Industrial Tribunals, HRTL applied for a preliminary hearing on the question of the jurisdiction of the Tribunal. HRTL made written representations by letter on both points.

In view of the points raised under Community Law, it is also necessary to look at the substance of the complaint. Mrs Stedman was employed by HRTL as an assistant travel manager. She was dismissed for refusing to work for HRTL on Sundays. HRTL had an office in an ASDA Superstore where Sunday working was introduced in Christmas 1991. Mrs Stedman agreed to work temporarily on payment of double pay. She was not, however, happy with the situation. On 27th April 1992 she informed the manager that she was no longer prepared to work on Sundays. She gave one month's notice of that intention. She objected to the loss of time which she wished to spend with her new husband and her family, as well as walking and keeping fit. She was not in agreement with Sunday trading and believed that Sunday should remain a special day. On 7th May 1992 she was told that her contract of employment was to be amended to include Sunday as a normal working day with no enhanced rate of pay. She would receive two days off in lieu during the week. Mrs Stedman refused to sign the new contract and said that she would continue working under her existing contract. On 4th June 1992 she was dismissed and paid one month's pay in lieu of notice.

She was told by a firm of solicitors, the Citizens' Advice Bureau, her Union, ACAS and the Unemployment Office that she could not make a claim for unfair dismissal, as she had only been employed by HRTL for 22 months. She was later told that she had a claim under European law and that certain procedural rules would not apply to her case.

B. The Industrial Tribunal hearing

On 12th July 1993 Mrs Stedman appeared in person before the Tribunal. She was assisted by a barrister, Mr Diamond, who was recorded as attending in the capacity of "Keep Sunday Special". The Tribunal considered written representations from HRTL. According to the Reasons notified to the parties on 12th August 1993 Mr Diamond argued on Mrs Stedman's behalf that the two year qualifying period contained in S.64(1)(b) of the 1978 Act was contrary to Article 119 of the EEC Treaty. It was submitted that Article 119 applied because equal pay included compensation and access to compensation for unfair dismissal. The Tribunal decided that Article 119 did not oblige it to disregard the qualifying period in S.64. The Tribunal recognised that, if there had been a Directive to that effect, then they might have had to interpret the law in accordance with the Directive. But there was no such Directive. In those circumstances the Tribunal held that Mrs Stedman was not employed for a sufficient time for her application to proceed.

C. The appeal

An amended Notice of Appeal against that decision was received at the Employment Appeal Tribunal on 14th February 1994. It was not signed by Mrs Stedman or by any representative. It was, however, stated in paragraph 2 of the notice that any communication relating to the appeal may be sent to Mrs Stedman c/o Mr Paul Diamond at what appears to be a private address. The Tribunal had directed that the initial appeal should be set down as a preliminary hearing which took place on 31st January 1994. Mrs Stedman did not attend the hearing. Mr Diamond appeared on her behalf as a `pro bono' representative. He made submissions to the Tribunal for several hours with the assistance of a detailed Skeleton Argument and photocopies of numerous authorities. The Tribunal did not go into the details of the authorities. The only purpose of the preliminary hearing was to decide whether there was an arguable point of law which should be decided at a full hearing of the Tribunal. Mr Diamond made it clear in his submissions that he did not pursue his argument under Article 119 of the EC Treaty. Instead, Mr Diamond asked the Tribunal to refer certain questions to the European Court of Justice under Article 177. Unfortunately, no questions had been formulated and no notice of an application for a reference had been given to HRTL. The Tribunal decided that the appeal should only be allowed to proceed to a full hearing if the Notice of Appeal was amended to set out the grounds on which the appeal was now being pursued, if a Skeleton Argument was served on HRTL and if an application was issued before the Tribunal and served on HRTL seeking a reference.

The full hearing of the appeal took place on 1st March 1994. Mrs Stedman did not attend. Mr Diamond informed the Tribunal that she was unavailable because she was in hospital, but her instructions were to pursue the appeal and the application for a reference. HRTL did not attend. Unfortunately, Mr Diamond was not in a position to put before us a statement of facts, either as found by the Industrial Tribunal or as agreed with HRTL, for use as the basis of an application for a reference. We were informed that Mr Diamond had made attempts to reach an agreement with HRTL about the relevant facts, but no agreement was reached. The Tribunal expressed doubts whether it was appropriate to make a reference before the relevant facts had been established by the Industrial Tribunal or agreed between the parties. Mr Diamond nevertheless persisted in his application for a reference of questions which he had formulated on the basis of submissions summarised later. After hearing a full day's argument we reserved judgment.

A week later this Tribunal received a letter from Mr Diamond dated 7th March 1994 informing us that facts stated in an enclosed schedule of facts had now been agreed with HRTL. He stated that he would be relying on those facts in support of the application he had made for a reference. There was also sent to the Tribunal a copy of a Fax from HRTL confirming agreement to the schedule of facts which had been discussed earlier over the telephone.

The Agreed Schedule of Facts

The agreed schedule of facts has attached to it a copy of a letter dated 13th July 1990 which sets out the terms of Mrs Stedman's employment as a Senior Travel Counsellor and also copies of correspondence which passed between Mrs Stedman and HRTL in May and June 1992. The agreed schedule of facts reads as follows:

"1. Mrs Stedman commenced employment with the Respondent Company on 13th August 1990 as an Assistant Travel Manager.

2. Her place of employment was situated in a 'superstore', which is a single building comprising a number of undertakings.

3. In the United Kingdom, many retail stores and undertakings have commenced Sunday trading. In April 1992, Mr Stedman and other members of the staff employed by the Respondent Company at the 'Superstore' were instructed to work on a Sunday. All staff were to receive payment at the rate of double time for Sunday working and to work a five day week. On 1st June 1992 the Respondent Company ceased to pay double rates of pay for Sunday working.

4. Mrs Stedman would not have been required to work every Sunday as this factor was dependent on managerial discretion, business needs, internal staff arrangements and the existence of a rota system. In principle, a rota of working one Sunday in every four was established, but in the period of time that Mrs Stedman was required to work on Sunday (December 1991 - May 1992), she worked 10 out of a total of 25 Sundays.

5. Mrs Stedman refused to work on a Sunday; as Sunday was a day which she devoted to non-commercial activities; inter alia family and social life and religious activities.

6. Mrs Stedman was dismissed by her employers on 4th June 1992 and paid a month's salary in lieu of her contractual notice period. She was dismissed for refusing to work on Sundays. The Respondent Company believed it was justified in asking Mrs Stedman to work on a Sunday for operational reasons. Mrs Stedman did not agree with Sunday working.

7. Section 64 of the EP(C)A 1978 requires that an employee should be continuously employed for a period of 2 years in order to have access to an industrial tribunal to seek a remedy for unfair dismissal. Mrs Stedman was employed for 22 months.

8. Section 67 of the EP(C)A 1978 requires that an application to an Industrial Tribunal must be made within 3 months of the effective date of termination (in this case the period expired on 3rd September 1992). Section 67(2) enables an Industrial Tribunal to extend this 3 month period in certain circumstances.

!8. Mrs Stedman contacted a Trade Union, the Advisory, Conciliation and Arbitration Service (`ACAS' an emanation of the state), the Department of Employment, the Citizen's Advice Bureau and a private solicitor who all advised her, or confirmed to her, that she had no claim in domestic law as she had been employed for less than the requisite period of two years. No one was aware of any Community right in this field.

9. In October 1992, Mrs Stedman was informed that she might have a Community right. She was instructed to make her application to an Industrial Tribunal. Her application was dated 28th October 1992, but appears not to have been received until 16th November 1992 by the Industrial Tribunal.

10. No legal aid or assistance is available for cases brought in the Industrial Tribunal.

11. At a preliminary hearing on 12th July 1993, the Industrial Tribunal unanimously rejected her application as they held that they were without jurisdiction to hear the claim by virtue of the provision of the 1978 Act, namely that the Applicant had not been employed for the requisite period of two years. On 31st January 1994, there was a preliminary hearing before the Employment Appeal Tribunal and the matter was heard on 1st March 1994."

The Questions

Mr Diamond submits that the following questions need to be referred to the Court of Justice under Article 177 of the EEC Treaty for an interpretation of the Treaty to enable the Employment Appeal Tribunal to come to a decision in this case:

"1(1) Where an employee is dismissed for refusing to work on a Sunday in circumstances similar to those of this case, is the effect of the Court of Justice's ruling in case 145/88 Torfaen, Case C312/89 Conforama, Case C332/89 Marchandise and Case C169/91 Stoke that a member State must provide a remedy, as may be required by the principles of fundamental rights which is part of the principles of Community law?

1(2) Is the answer to question 1(1) affected by the provisions of Articles 92 and 93, Article 118A and Article 120 of the Treaty?; and what is the effect of these provisions in relation to an individual in circumstances similar to those of this case?

2(1) In the absence of any measures providing for the approximation of laws of member States concerning procedural rules and the exercise of Community rights, is the effect of the Court of Justice's ruling in Case C208/90 Emmott that national procedural rules (in particular those relating to time limitation periods) cannot commence before the determination of the existence of the Community right; so as to accord with the general principles of Community law?

2(2) If the answer to 2(1) is affirmative, must that Community right once it has been recognised be transposed into national law before national time periods can commence?

2(3) Is the answer to 2(2) affected by the fact that the Community right derives directly from the Treaty?

2(4) Is it the prerogative solely of the Court of Justice or is it the joint prerogative of the Court of Justice or is it the joint prerogative of the Court of Justice as well as the national courts to determine the retroactive effect of a Community right after it has been recognised?"

The application for reference

This Tribunal has found it difficult to grapple with the amorphous, unfocussed character of the proposed test-paper type questions, particularly as it has not had the benefit of any contrary submissions from HRTL. In the absence of the clarification of issues by adversarial argument, this Tribunal has attempted to do the best it can to understand and evaluate the detailed submissions made by Mr Diamond.

Under Article 177 the Court of Justice has jurisdiction to give preliminary rulings concerning the interpretation of the Treaty and the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide. The circumstances in which a reference may be made are defined as follows:

"Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon."

After hearing argument from Mr Diamond, this Tribunal has reached the conclusion that it does not consider that a decision on the questions formulated is necessary to enable the Employment Appeal Tribunal to give judgment on this appeal. The Tribunal will not therefore request the Court of Justice to give a ruling on those questions and will dismiss this appeal. Our reasons for this decision are briefly these:

(1) Under the domestic law of the United Kingdom the Industrial Tribunal does not have jurisdiction to entertain a claim by Mrs Stedman that she was unfairly dismissed. Mr Diamond appeared to accept that this was the effect of both S.64 and S.67(2) of the 1978 Act.

(2) We have been unable to find in any Article of the EEC Treaty or in any provision of any Regulation or Directive or in any decision of the European Court of Justice any basis for the contention made by Mr Diamond that the issue of Mrs Stedman's dismissal for refusing to work on a Sunday is a matter regulated or governed by Community law provisions conferring directly effective rights enforceable by national courts or tribunals against a private employer. In the absence of such rights in Community law, we fail to see how any question of interpretation arises on which a reference could be made to the Court of Justice for a preliminary ruling.

On behalf of Mrs Stedman, Mr Diamond has made earnest and industrious efforts to persuade us to the contrary. In summary, his submissions were as follows:

(1) The requirement in S.64 of continuous employment for not less than two years is contrary to the rules of Community law. It was also argued that the three month limitation period in S.67(2) might differ from the time period in Community law and that therefore the three month limitation period might not be applicable or, if applicable, might not commence until the Community right had been identified and thereafter fully and accurately transposed into national law. We shall not comment further on the submissions under S.67(2), as they do not assist Mrs Stedman if she is unable to establish that the requirement of two years' continuous employment is contrary to Community law.

(2) The scope of Community law is very wide and includes Sunday working. For example, rules regulating Sunday trading and Sunday working fall within Article 30 as rules that affect trade, threaten the integration of the Common Market and potentially distort competition within the Community. Reference was made to the case of Torfaen BC v. B & Q Plc [1990] 2 QB 19; Conforama and Marchandise [1991] ECR 1007; Kirklees MBC v. Wickes Building Supplies Ltd [1993] AC 227 and Stoke City Council v. B & Q Plc [1993] 2 WLR 730.

(3) Accordingly, the dismissal of Mrs Stedman for refusing to work on Sunday is a matter that falls within the scope of Community law. It is a matter regulated by Community law that gives Mrs Stedman directly effective rights that must be enforced and protected by national courts and tribunals.

(4) The rules regulating the issue of Sunday working relate to the division of power between the Community and Member States. Member States can regulate such matters, but only within the framework established by Community law. Member States cannot act as if they are outside the scope of Community law. Accordingly, if the Court of Justice permits a Member State a discretion within an area regulated by Community law, that discretion must be exercised according to the principles that govern Community law.

(5) The principles that govern the scope of Community law include, for example, principles of proportionality and fundamental rights.

(6) The dismissal of Mrs Stedman in an area covered by Community law endows her with rights that must be protected by the national court and, in so doing, the national court must disapply any procedural or jurisdictional rules that prevent the application of the Community rights. The national court must provide a remedy that is both adequate and will deter the breach of the Community right.

(7) In particular, the Court of Justice will examine the rights contained in the European Convention of Human Rights, the European Social Charter, the International Covenant of Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Mrs Stedman relies particularly on Article 8 regarding the right to privacy and family life and Article 9 regarding freedom of religion in the European Convention and Article 2(5) relating to the right to rest on Sunday in the European Social Charter.

(8) The practice of Sunday working in the United Kingdom may violate some fundamental rights of Mrs Stedman in an area covered by Community law and accordingly a Member State must provide an adequate remedy. It is for the European Court of Justice, by means of a uniform interpretation valid throughout the entire Community, to determine the exact scope of the putative Community right and the nature of the remedy that must be provided.

That outline of the way in which Mr Diamond develops his argument does not do full justice to the detail in which Mr Diamond has set out his case in his Skeleton Argument. We have been referred to many of the materials cited in his argument. What we have been unable to find anywhere, whether it be in the Treaty or in the decisions of the Court or in any of the Conventions, Charters and Covenants regarding human rights, is any recognition of a right not to work on a Sunday, either as a Community right or as a fundamental right relevant to the interpretation of Community rights, accorded on grounds of rights to privacy and family life or freedom of religion or rights of workers' to days of rest. In those circumstances we do not see how Mrs Stedman can succeed in her contention that a requirement of two years' continuous employment applicable to her claim for unfair dismissal for refusing to work on a Sunday may be disapplied as contrary to Community law.

For those reasons we dismiss Mrs Stedman's appeal and refuse to request the European Court of Justice to give a ruling on the draft questions formulated.