United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 666_95_1010

Appeal No. EAT/666/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 10th October 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR K M HACK JP

MR W MORRIS

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G D WILLS          APPELLANT

LONDON GUILDHALL UNIVERSITY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

APPLICATION FOR REFERENCE TO THE EUROPEAN COURT

Revised


 


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APPEARANCES

For the Appellant MR WILLS IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT): We now deal with the second matter which relates to this dispute. That is not an appeal. It is an application by Mr Wills for a reference to the European Court, and this application follows on from the refusal to allow the amendments to introduce sex discrimination as explained in the July judgment, as well as in the one just given.

The main ground on which the refusal to allow the amendments has been based is the fact that the complaints are made long after the expiration of the time limits in the Sex Discrimination Act 1975. The provisions of the Act, which are the starting point for the argument on the European application, are these. The Sex Discrimination Act was enacted in 1975, before the European Community Directive on Equal Treatment. That directive was dated 9th February 1976, and is referred to as "76/207/EEC".

The 1975 Act unlike the Directive, contains provisions as to the period within which proceedings are to be brought. Section 76(1) provides:

"(1) An industrial tribunal shall not consider a complaint under section 63 [that is a complaint of sex discrimination] unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done."

Section 76(5) confers a discretion to extend the time in the following circumstances:

"(5) A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

As already observed, the Directive 76/207, which is concerned with the implementation of "The Principle of Equal Treatment for Men and Woman as regards to access to employment, vocational training and promotion, and working conditions", does not contain any provisions about the period within which claims may be brought under it. That omission forms the basis of Mr Wills's argument.

He asks us to refer to the European Court of Justice the questions whether Directive 76/207 has been properly transposed into the law of the United Kingdom and whether, on the proper interpretation of that Directive, the time limit provisions in Section 76 of the 1975 Act, are incompatible with the provisions of the Directive.

The application for a reference is under the Article in the Treaty of Rome which gives power to the court of a member state to request rulings from the European Court of Justice. Article 177 confers on the European Court of Justice jurisdiction to give preliminary rulings concerning not only the interpretation of the Treaty, but also the validity and interpretation of Acts of the institutions of the Community. A `Directive' is an Act of an institution of the Community. It is an act of Council of Ministers. The European Court of Justice has jurisdiction to interpret a provision of the Directive. The power of the national court to make a reference is dealt within the following paragraph which provides:

" Where such a question [that is a question of interpretation] is raised before a court or tribunal of a Member State, that court of tribunal may, if it considers that a decision of the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon." [That is a ruling on the interpretation of the act of an institution of the Community.]

The first question is this: is there is question on which it is necessary for this Tribunal to have a ruling before it can decide the case brought by Mr Wills against the University. Mr Wills submits that there is a question. His argument is as follows. The first stage is that the London Guildhall University is an emanation of the state, as it satisfies the criteria set out in the European Court and accepted in the House of Lords in the case of Foster v British Gas PLC. The purpose of the first proposition is to enable Mr Wills to rely on a Directive. A Directive can only be relied upon directly against the State, or an emanation of the State. The first point is that this is a claim against an emanation of the State and the Directive can be relied upon by him.

Mr Wills then argues that the Equal Treatment Directive 77/207 covers this case, because it is concerned with equal treatment in relation to working conditions. His complaint is that he has received less favourable treatment at work than a woman would have received in the circumstances of his case.

He cites an important decision of European Court of Justice which he submits impacts on his case on time limits. The obstacle which the Industrial Tribunal and this Tribunal see in the way of Mr Wills pursuing his claim of sex discrimination is the time limit in Section 76 of 1975 Act. Mr Wills argues that, when proceeding under the Directive, it is necessary to have regard to the principles laid down in the case of Emmott, reported in 1991 IRLR at page 387. Emmott contains three paragraphs in the judgment of the European Court material to this application. First, paragraph 16 where the Court says after reference to earlier cases:

"... in absence of Community rules on the subject, it is for the domestic legal system of each Member State to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which individuals derive from the direct effect of Community law, provided that such conditions are not less favourable than those relating to similar actions of a domestic nature nor framed so as to render virtually impossible the exercise of rights conferred by Community law."

The Court went on to say in paragraph 17 that:

" Whilst the laying down of reasonable time limits which, if unobserved, bar proceedings, in principle satisfies the two conditions mentioned above, account must nevertheless be taken of the particular natures of Directives."

The position is that, in general, time limits for enforcing rights, whether conferred by domestic law or by Community law, are governed by the procedural provisions of the law of the particular Member State in which the proceedings are brought. If the case cited stopped there, Mr Wills would derive no particular support from it.

His argument is based on what the Court said about the particular nature of Directives. He relies on paragraph 23 of the judgment:

"... until such time as a Directive has been properly transposed, a defaulting Member State may not rely on an individual's delay in initiating proceedings against it in order to protect rights conferred upon him by the provisions of the Directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time."

That is an important principle of Community law. It prevents a member state, which has not complied with the obligation to implement a Directive, from pleading time limits by relying on its own default in order to fend off claims brought against it under the un-implemented Directive.

This is the crucial part of Mr Wills's case. He submits that, as decided by the European Court in the case of Marshall, the United Kingdom is in default in implementing the provisions of Equal Treatment Directive. It follows that the Guildhall University, as an emanation of the State of the United Kingdom, is not entitled to raise against him, as an objection to proceedings, the delay which has occurred in his bringing forward the complaint of sex discrimination. He argues that the period laid down by national law, in this case Section 76 of the Sex Discrimination Act 1975 specifying the period within which proceedings must be initiated, does not even begin to run against him while the United Kingdom is default in implementation of the Directive.

For that reason Mr Wills wishes to have a ruling from the European Court of Justice as to whether the United Kingdom, manifested in the form of the Guildhall University, is entitled to rely on the provisions of Section 76 of the 1975 Act. Mr Wills argues that those provision are incompatible with the Directive. If they are relied on, they deny him effective judicial protection for his rights under the Equal Treatment Directive. This should not be allowed to further (I think?) or favour an emanation of the State, as long as the State is in default of the obligation to implement the Directive.

Mr Wills presented his case clearly. He pointed out that he was not aware, until the Marshall case was decided, of the full extent of his rights; in particular his rights to full compensation. As a result of the Marshall case a complainant in sex discrimination claim is no longer subject to a statutory ceiling of compensation imposed by the law of the United Kingdom. That ceiling has been held to be incompatible with Community law. He was not aware until the Marshall case was decided that he was now able to claim full compensation for a wrong committed against him by way of sex discrimination.

We have given full consideration to these arguments. We commend Mr Wills for his industry and efforts in researching these matters, and deploying the argument. The conclusion we have reached, however, is that it is not necessary for this matter to be referred to the European Court for a ruling in order to enable either this Tribunal (or the Industrial Tribunal) to decide Mr Wills's claim of sex discrimination.

The position is that he is not able to rely on the case of Emmott, because the United Kingdom is not in default of its obligations to implement the Directive in relation to any matter relevant to his claim. The Directive does not lay down any time limits. That does not mean there are no time limits. It is well established principle of Community law, as stated in paragraph 16 and 17 of the decision in Emmott, that in the absence of Community rules on a procedural question, such as time limits, it is the domestic legal system of each Member State which governs procedural conditions, including reasonable time limits. We are unable to see anything unreasonable in the time limits contained in Section 76 of the 1975 Act. There is an initial time limit of 3 months. If it is just and equitable to do so, there is a jurisdiction in the Tribunal to extend the time beyond that period. We are unable to see anything in those time limits which renders it virtually impossible to exercise rights conferred by Community law. There is nothing in those time limits less favourable for rights conferred by Community law than for rights arising in similar actions of a domestic nature.

Our reasons for dismissing the appeal are, therefore; that there is no default which enables Mr Wills to say that the University, as an emanation of the State, is debarred from contending that domestic law time limits have expired. We are unable to see anything in the time limits in the 1975 Act which offend the principles of European law.

Mr Wills made a number of subsidiary points. We will briefly comment on them. One was that the 1975 Act did not implement the Directive, because it preceded it. That is a false point. The position is that if the 1975 Act is compatible with the Directive, then it is legitimate for the United Kingdom to take no further action. There is no need to implement a Directive in relation to matters already in place in United Kingdom law in a way which conforms to Community Law.

As to the arguments about the University as an emanation of the State, we have assumed those to be correct for the purposes of the argument. We make it clear that, we make no decision on the matter whether it is or not and emanation of the State. It would not be right to make such a decision on hearing arguments only on one side. The University, although it has been notified of this application, has not attended. We have not had the benefit of contrary argument.

For all those reasons, this is not a case within Article 177. We do not exercise our discretion to make a reference.

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MR JUSTICE MUMMERY (PRESIDENT): We have considered your application, Mr Wills, and we refuse leave to appeal to the Court of Appeal on the European reference application. You must make application to the Court of Appeal.