United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 794_93_3101

Appeal No. EAT/794/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 31st January 1994

Judgment delivered on 23rd May 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR A FERRY MBE

MISS J W COLLERSON

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MRS L STEDMAN          APPELLANT

HOGG ROBINSON TRAVEL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR P DIAMOND

(Of Counsel)


 


MR JUSTICE MUMMERY (PRESIDENT): I take the unusual step of giving a judgment on this Preliminary Hearing, even though we are not dismissing the appeal at this stage. The position on this Preliminary Hearing is this. The Industrial Tribunal sitting at Nottingham on the 12th July 1993 unanimously decided that Mrs Louise Stedman had not been employed for a sufficient time for her application for unfair dismissal to proceed. She had brought a claim for unfair dismissal against her employers, Hogg Robinson Travel, by a complaint presented on the 16th November 1992. According to that complaint she had been employed as an Assistant Travel Manager, by Hogg Robinson, commencing on the 13th August 1990. Her employment had terminated on the 4th June 1992 because she alleges she had refused to work on Sundays.

The details of her complaint are set out in a narrative attached to her Originating Application, setting out the circumstances leading up to her dismissal. She states that she had consulted two firms of solicitors, a Citizens Advice Bureau and various other bodies and been told, in all cases, that, as she had only been employed by Hogg Robinson for 22 months and not 24, she had no claim for unfair dismissal.

She made further enquiries which she says revealed that she had a claim under European law in which case the procedural rules relating to length of service would not apply.

Hogg Robinson wrote a letter on the 1st April 1993 to the Regional Office of Industrial Tribunals taking the point that Mrs Stedman had not had two years' continuous employment with them and, therefore, the Tribunal had no jurisdiction to entertain the claim. They also pointed out that the complaint was out of time, as it was not presented to the Industrial Tribunal until after the exploration of the three month period provided by the 1978 Act. They pointed out that there was no evidence to suggest that it was not reasonably practicable for Mrs Stedman to present her claim within the three months or within a reasonable time thereafter.

When the matter came before the Industrial Tribunal submissions were made on behalf of Mrs Stedman by Mr Diamond. His main submission appears from the Reasons notified to the parties on the 12th August 1993 to be that Section 64 of the Employment Protection (Consolidation) Act 1978 which provides for the two years continuous employment requirement for an unfair dismissal claim was contrary to Article 119 of the European Community Treaty that is, the equal pay for equal work provision.

The Tribunal referred to the Article and to a number of authorities and expressed the conclusion that the Article did not oblige the Industrial Tribunal to disregard the requirements of Section 64. They ruled that there was no jurisdiction to entertain Mrs Stedman's claim. She had not been employed for the requisite period of two years.

We understand from Mr Diamond that there was also argument on other aspects of European law which he was not given as full an opportunity to develop as he would have wished. There were also submissions made in relation to the 3 month time limit for the presentation of the complaint. On that aspect of the case no decision was given by the Tribunal.

Mrs Stedman was dissatisfied with her failure before the Industrial Tribunal and appealed.

In the Notice of Appeal of the 22nd September 1993 seven grounds of appeal are set out. We have been told by Mr Diamond that the grounds set out in paragraphs 1 to 5 are no longer pursued.

The first ground was that the Tribunal erred in law by preventing Mrs Stedman from making her full submissions. The second referred to the primacy of Article 119 of the Treaty over National law. The third paragraph simply related to the issues in the case and did not itself constitute a ground. The fourth paragraph was that the three month time limit did not apply to Community rights. It is impossible for Mrs Stedman to bring an appeal against the 3 month time limit point since there was no decision on that point, adverse to her, made by the Industrial Tribunal. Then, fifthly, by way of repetition, it is stated that the two year qualification rule in Section 64 is contrary to Article 119 and should be set aside.

The Article 119 point upon which the Tribunal expressed its decision against Mrs Stedman is not, therefore, pursued on this appeal. Mr Diamond does, however, pursue points which are covered by general wording in paragraphs 6 and 7 of the Notice of Appeal. The argument is that the issue of Sunday working comes within the Community law doctrine of protection of fundamental rights and a Member State is obliged to give protection to those rights. There is general reference to the European Convention on Fundamental Freedoms and Human Rights which need to be determined, and that it is the role of National Courts under Article 5 to give effect to those rights.

The argument on the preliminary hearing was directed to the issue whether there is an arguable point of law. It is unnecessary to go into the matter at this stage in all the detail, which is set out in Mr Diamond's skeleton argument, as amplified in oral submissions. In a nutshell his case is that there is fundamental right in Community law for an employee not to have to work on a Sunday. If Section 64(1)(a) applies imposing a two year employment qualification, that will constitute a denial of the right to a person such as Mrs Stedman, who cannot satisfy that qualification. In those circumstances, Mr Diamond wishes to argue that, Section 64(1)(a) should be disapplied so that the fundamental right can be enforced without that restriction.

Mr Diamond wishes to refer to a great number of authorities. We have not allowed him to develop the argument without him first identifying a point of law which he submits is arguable. He has to accept the position that there is no Article in the Treaty; there is no Regulation; there is no Directive and there is no decision of the European Court of Justice which expressly recognises the rights, which he asserts. In those circumstances, we find it difficult to see how his point can succeed.

When we expressed this view to Mr Diamond he said, this is the case which would succeed in establishing the right. For that reason, we should make a reference under Article 177 of the Treaty asking the European Court to give a preliminary ruling concerning the interpretation of the Treaty.

The difficulty with acceding to that course at the preliminary hearing is that we have no evidence that any notice was given by Mr Diamond on behalf of Mrs Stedman, or by Mrs Stedman herself, to Hogg Robinson, that an application was to be made at this hearing for an Article 177 reference. It would not be right for us, in the absence of a Respondent, to hear full argument on an application for a reference, let alone to make a reference. It would not be right, in the absence of the Respondent, to allow this appeal.

What we propose to do is this: while entertaining grave doubts about whether there is any arguable point of Community law we shall direct this matter to proceed to a full hearing. In preparation for the full hearing we direct that within fourteen days Mrs Stedman's Notice of Appeal should be amended to state accurately the grounds on which the appeal is pursued. A skeleton argument should be served on the Respondents within 28 days setting out in a structured form a summary of the steps in the argument for the existence of the Community right, for the disapplication of Section 64(1)(a) and for a reference to the European Court. An application should be issued before this Tribunal and served on the Respondents seeking a reference. The application should state the form of the questions which are to be referred and a summary of the facts which provide the context in which the reference is sought to be made.

If, at the full hearing, Mr Diamond wishes to refer to the numerous cases on European law which are mentioned in his skeleton argument there should be supplied, not only to this Tribunal, but also to the Respondent a Bundle of photocopies of all the relevant authorities.

Mr Diamond objected to some aspects of the directions which we proposed to give on the grounds that they will involve a serious delay and may prejudice his client. He asked for expedition. We are sorry to say that there will be delay. It is inevitable, and we are unable to order expedition since there are no grounds why this case should be heard any faster than the 1,100 other cases waiting to be heard. The delays are unfortunate. They are inherent in the defects of the system. Expedition will be given where there are special grounds. There are none shown in this case.

We shall therefore direct that this matter proceeds to a full hearing on that basis. As to the estimated length of hearing Mr Diamond suggested three days. We will direct the matter to be set down for one day which should be adequate to deal with all arguments if they are presented in a suitable form. If we have the photocopy cases ahead and have the skeleton argument ahead of the hearing a great deal of time will be saved in oral argument.